IN THE CASE OF:	  

		BOARD DATE:	  29 July 2008

		DOCKET NUMBER:  AR20080007904 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions discharge (UOTHC) be upgraded. 

2.  The applicant states in effect, that while serving in the military he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possession of marijuana.  He states that the NJP action was justified; however, none of his service up to that point was considered during this process.  He now requests an upgrade of his discharge based on his service prior to his receiving the NJP in question.  He also states that his mother was ill at the time and had been diagnosed with cancer, and that he had requested some emergency leave to be with her at the Article 15 hearing, but this was not addressed or considered.  He further states that he has spent 25 years regretting how his service to his country ended and is now requesting that his discharge be upgraded based on his overall character of service which was not considered throughout the proceedings.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Separation Document (DD Form 214); Personnel Qualification Record (DA Form 2-1), Page 1; Headquarters, 3rd Battalion, 
1st Advanced Individual Training (AIT) Brigade Letter, dated 9 May 1980; Certificates of Achievements; 1st Cavalry Division Association Lifetime Membership Certificate; Article 15 (DA Form 2627); Characterization of Service Checklist for Administrative Discharge Actions (USAARMC Form 4939); Request for Discharge for the Good of the Service Counseling Form; Certificate of Appreciation; and Certificate of Authenticity.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant’s records show he enlisted into the Regular Army and entered active duty on 22 January 1980, and was trained in and awarded military occupational specialty (MOS) 19E (Armor Crewman).  His record shows the highest grade he attained while serving on active duty was specialist four (SP4). 

3.  The applicant's record shows that during his active duty tenure, he earned the Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Pistol Bar.  His record documents no acts of valor or  significant achievement. 

4.  On 30 April 1982, while serving at Fort Hood, Texas, the applicant was notified that his unit commander was considering whether he should be punished under Article 15 of the UCMJ for wrongfully possession and use of marihuana. 

5.  On 3 May 1982, the applicant elected not to demand a trial by court-martial or a hearing.  He also elected not to submit matters in defense, mitigation, and/or extenuation, and choose not to have someone speak in his behalf.  

6.  On 3 May 1982, the applicant’s company commander imposed the following punishment on the applicant:  reduction to the grade of private/E-1 (PV1), forfeiture of $275.00 per month for 2 months, and correctional custody for 
30 days.  

7.  On 4 May 1982, the applicant elected to appeal the punishment, and on 5 May 1982, a Judge Advocate General (JAG) attorney reviewed the applicant’s appeal and opined that the Article 15 proceedings were conducted in accordance with the applicable law and regulations.  He further stipulated that the punishment imposed was not disproportionate to the offense committed.  On 
20 May 1982, the appellate authority, after consideration of all matters presented in appeal, denied the applicant's appeal. 
8.  On 7 May 1982, the applicant departed absent without leave (AWOL) from his unit, and on 6 June 1982, he was dropped from the rolls (DFR) of the organization.  He remained away until returning to military control at Fort Knox, Kentucky, on 25 June 1982.  

9.  On 28 June 1982, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 7 May 1982 through on or about 25 June 1982.

10.  On 2 July 1982, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request, he acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all Department of Veterans Affairs (VA) benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.  

11.  On 9 July 1982, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, and directed the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 28 July 1982, the applicant was discharged accordingly.  

12.  The DD Form 214 issued to the applicant upon his discharge confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that he had completed a total of 2 years, 4 months, and 19 days of creditable active military service and that he had accrued 49 days of time lost due to AWOL.  

13.  The applicant provides Certificates of Achievement and letters that confirm he was commended for his performance or various acts between May 1980 and November 1981.  

14.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  However, the regulation does allow the issue of a general, under honorable conditions discharge (GD), or an honorable discharge (HD), if the separation authority determines it is warranted based on the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded to an HD based on his service prior to his Article 15 and the illness of his mother being experienced at the time was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms the applicant’s Article 15 processing was accomplished in accordance with the governing law and regulation, and that his rights were fully protected throughout the process.  The applicant was aware he had the right to fully present his case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence at the time he made these elections, and elected not to take advantage of these options.  Further, although his service prior to his receipt of the Article 15 may have been honorable, as evidenced by the Certificates of Achievement and letters he provides, this service was not sufficiently meritorious to overcome the drug offense upon which the NJP was based and the AWOL offense that resulted in his discharge.  

3   The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The evidence also shows the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which was consistent with regulatory policy.

5.  By regulation, an UOTHC discharge is normally appropriate for members discharged for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  In this case, the applicant's record is void of any acts of valor or significant achievement that would have warranted the issue of an HD or GD by the separation authority at the time of his discharge, or that would support an upgrade of his discharge at this time.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ x_   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007904



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ABCMR Record of Proceedings (cont)                                         AR20080007904


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