IN THE CASE OF:	  

		BOARD DATE:	        26 February 2009

		DOCKET NUMBER:  AR20080016640 


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 an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that he was successful in his job, served with no disciplinary problems, and was promoted to private first class (PFC)/E-3.  However, he was young and impressionable at the time.  He also states that his discharge is unjust because it was based on an isolated incident.  He adds that since his discharge he has had a difficult time dealing with drug and alcohol addiction; however, he is currently clean and sober and works with the area Veterans Transition Center to help put him back on the right track.

3.  The applicant did not provide any additional documentary evidence in support of his application.

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 that he was born on 2 June 1959 and enlisted in the Regular Army at 17 years and 5 months of age for a period of 3 years on 8 November 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained during his military service was PFC.

3.  The applicant's records also show he served in Germany from 22 March 1977 to 22 December 1978.  His awards and decorations include the Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.  

4.  On 14 September 1978, the Schweinfurt Resident Agency, Second Region, U.S. Army Criminal Investigation Command (USACIDC) was notified by German police that a search of the apartment occupied by the applicant and another Soldier yielded some smoking devices with possible hashish residue, a marijuana plant, and several pieces of military munitions/explosive devices. 

5.  On 29 September 1978, court-martial charges were preferred against the applicant for one specification of larceny of government property (High Explosive (HE) projectile and fuse, practice rocket simulator, .50 caliber practice round, practice hand grenade, .50 caliber incendiary round, tear gas grenade with fuse, and two booby trap simulators) on or about August 1978; one specification of wrongfully possessing marijuana, on or about 14 September 1978; and one specification of wrongfully possessing a smoking pipe containing residue of hashish, on or about 14 September 1978.  

6.  On 27 October 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 4 November 1978, the applicant's immediate and intermediate commanders recommended approval of the applicant’s request for discharge with an under other than honorable conditions character of service. 

9.  On 7 November 1978, the applicant’s senior commander recommended approval of the applicant’s discharge with an under other than honorable conditions character of service.  

10.  On 9 November 1978, the Staff Judge Advocate reviewed the applicant’s request for discharge and recommended approval of the discharge with the issuance of an other than honorable conditions character of service.

11.  On 9 November 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions character of service and be reduced to the lowest enlisted grade.  On 1 March 1979, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 3 months, and 24 days of creditable active military service.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  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.


14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of service of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge.

2.  The evidence of record shows that the applicant was 17 years and 5 months of age at the time of his enlistment and 19 years of age at the time of his offenses.  However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his larceny of military munitions and wrongful possession and use of marijuana was the result of his age.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions discharge.





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.


															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)                                         AR20080016640



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ABCMR Record of Proceedings (cont)                                         AR20080016640



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