IN THE CASE OF:	  

		BOARD DATE:	        18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012363 


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 that his discharge under other than honorable conditions be upgraded to a discharge under honorable conditions (general).

2.  The applicant states, in effect, that he was young and not knowledgeable regarding life back in 1978 and that he got mixed up with people who were using marijuana.  He states that he got caught with some marijuana and as a result, he was court-martialed.  He states that he requested a discharge instead of taking his punishment.  He states that he was a high school dropout and that he came from a family with a background of having no education.  He states that he currently holds a General Educational Development (GED) and that he has taken some college courses.  He states that he regrets the mistake that he made; he did not fully understand the consequences of his actions.  He states that he applied for veterans benefits and he was not eligible because of the type of discharge that he received.  He states that the stigma of his discharge has followed him throughout his life and he requests that his discharge be upgraded.

3.  The applicant provides in support of his application, a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); and a copy of a letter from the Department of Veterans Affairs (DVA) Medical Center, dated 12 June 2008.





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.  On 26 May 1978, the applicant enlisted in the United States Army Reserve (USAR), for 6 years, with parental consent, at age 17.  At the time of his enlistment, he indicated that he had completed 10 years of education.  He successfully completed his training as a light weapons infantryman.

3.  The applicant was promoted to the pay grade of E-2 on 30 November 1978 and he was promoted to the pay grade of E-3 on 28 February 1979.

4.  On 7 May 1979, an investigation was initiated on the applicant after a complaint to military authorities that person(s) unknown, by unknown means, had forcibly opened a candy machine and removed an unknown amount of money and candy.  Further investigation revealed that the applicant and two other individuals had each taken candy from the damaged machine without paying.  
An inventory of the machine and its contents by a canteen vendor revealed approximately $200.00 worth of damage and loss of contents to include candy and money.  At the time of the investigation, the applicant and one of the other Soldiers were advised of their legal rights, which they both waived.  Both the applicant and the other Soldier initiated written statements admitting that they had both removed candy from the machine without paying; however, both denied breaking into the machine.  The case was completed with the apprehension of the applicant and two other Soldiers for larceny of private property.

5.  A Criminal Investigation Division (CID) Report of Investigation (ROI), dated 7 June 1979, disclosed the applicant wrongfully possessed and introduced into Fort Lewis Military Reservation 14.36 grams, more or less, of a controlled substance (marijuana), for the purpose of sale.  Further investigation disclosed that the applicant admitted to selling some of the marijuana for $2.00 per cigarette to United States Forces personnel stationed at Fort Lewis, Washington. The applicant stated that he purchased marijuana from two different locations in Tacoma, Washington, and brought the marijuana back to Fort Lewis for sell to personnel in his unit.  The applicant also stated that he did not use marijuana, but that he bought it to sell in order to make money.

6.  A CID ROI, dated 30 July 1979, disclosed that the applicant and another Soldier wrongfully appropriated one Recreational Services’ paddle boat valued at $498.87 from the Fort Lewis Recreational Services enlisted member’s beach.  According to the CID ROI, the applicant was advised of his rights and subsequent to waiving them, he admitted that he knew what he was doing was not entirely legal when he and the other Soldier took the boat without signing for it.  After coordination with the investigating agent and the Staff Judge Advocate, it was determined that the appropriate charge for the applicant and the other Soldier would be wrongful appropriation of government property.

7.  On 20 August 1979, the applicant was notified that charges were pending against him for possession of marijuana in an area of the installation under exclusive federal jurisdiction and military control and for wrongfully introducing marijuana into a military post for the purpose of sale.  

8.  On 7 September 1979, the applicant was notified that charges were pending against him for wrongfully appropriating a paddle boat, valued at about $498.87, from an area of the installation under exclusive federal jurisdiction and military control, and for a second specification of wrongful possession of marijuana.  

9.  On 25 September 1979, after consulting with counsel regarding the charges that were pending against him, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  At the time that he submitted his request for discharge, he acknowledged that he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable.  

10.  Along with his request for discharge, the applicant submitted a statement in his own behalf in which he stated that he was single and that he had two good parents.  He stated that he had a mother who had a hard life and that she had breast cancer that resulted in her undergoing a mastectomy.  He stated that he had a father who was a very hard worker and that he had a rough time all of his 
life.  In his request for discharge, the applicant went on to state that his parents were in debt and in need of money very badly; that he sent money home, but it was not enough; and that he believed that his parents were about to separate.  He stated that the only way to stop the separation was to get out of the Army and to help his parents; that he had a job waiting for him; and that he had a place to live.  He stated that he got high when he was in the 11th grade and that he joined the Army because he wanted to get a better education.  He stated that the Army was not the life for him; that there was life out there for him somewhere and he was going to find it.  He wanted to get out of the Army as soon as possible to help his parents because they gave him life.

11.  The appropriate authority approved the request for discharge on 4 October 1979 and recommended that the applicant be discharged under other than honorable conditions.  Accordingly, on 17 October 1979, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 1 year, 4 months and 17 days of net active service.

12.  The letter from the DVA Medical Center, dated 12 June 2008, informed the applicant that he was not entitled to be in the Providence VA Medical healthcare program because he was discharged from the military under other than honorable conditions.

13.  A review of the available records do not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.



3.  The applicant's contentions that he was young; that he got mixed up with people who were using marijuana; and that had a limited education have been considered.  The applicant’s contentions that his discharge has been harmful to him throughout his life; and that he applied for veterans benefits and was denied were considered.  However, none of these factors, either individually or in sum, warrant the relief requested.  

4.  The evidence of record indicates that when the applicant was in the Army, he took money and candy from a vending machine without paying; he purchased, and sold marijuana; and he wrongfully appropriated a boat that was government property.  He submitted his request for discharge for the good of the service in lieu of trial by court-martial and the appropriate authority approved his request.  He acknowledged that he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable and considering the nature of his offense, it does not appear that the characterization of his service is too harsh.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080012363



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ABCMR Record of Proceedings (cont)                                         AR20080012363



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