IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080016874 


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 discharge. 

2.  The applicant states that he was young and immature at the time and that he got involved with drugs and alcohol while stationed in Hawaii.  He adds that at one time he was informed that the drug dealer was looking for him in order to kill him, so he stayed off-post for a month and a half and ultimately turned himself in at Fort Campbell, Kentucky.  He was subsequently confined at Fort Knox, Kentucky, and upon his release, he was given the option of returning to Hawaii or receiving an under other than honorable conditions discharge.  He chose the later because he knew there was a risk to his life if he had returned to Hawaii.  He concludes that if he had known he would lose his military benefits, he would not have agreed to the discharge. 

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 October 1980, 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 he was born on 15 May 1957 and enlisted in the Regular Army at 19 years of age for a period of 3 years on 29 October 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  He was honorably discharged on 29 October 1979 for the purpose of immediate reenlistment and executed a 3-year reenlistment in the Regular Army on 30 October 1979.  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s record reveals an extensive history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) during his first period of enlistment, as follows:

	a.  on 7 February 1977, for being derelict in the performance of his duties in that he failed to remain awake and alert on fire and security bay guard, on or about 4 February 1977.  His punishment consisted of forfeiture of $50.00 pay for one month; 

	b.  on 4 March 1977, for being disrespectful in language toward a superior noncommissioned officer (NCO), on or about 18 February 1977.  His punishment consisted of 10 days of extra duty;

	c.  on 8 March 1977, for being derelict in the performance of his duties in that he failed to remain awake and alert on fire and security bay guard, on or about 7 March 1977.  His punishment consisted of forfeiture of $87.00 pay for one month, 14 days of restriction, and 14 days of extra duty; 

	d.  on 28 March 1977, for wrongfully having the bowl portion of a smoking pipe containing marijuana, on or about 5 February 1977, wrongfully possessing a small amount of marijuana, on or about 5 February 1977, and violating a general regulation in that he wrongfully possessed a prohibited item, a curve bladed knife, on or about 23 March 1977.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $125.00 pay for 2 months, and 45 days of restriction; 

	e.  on 27 April 1977, for missing port call and being absent without leave (AWOL) for seven days.  His punishment consisted of forfeiture of $50.00 pay for 2 months; 

	f.  on 8 July 1977, for failing to obey a lawful General Officer’s order by swimming in the Regnitz river, Furth, Germany, on or about 13 April 1977.  His punishment consisted of forfeiture of $175.00 pay for 2 months (the amount over $100.00 suspended for 180 days), 45 days of restriction and 45 days extra duty (both extra duty and restriction in excess of 15 days suspended for a period of 180 days); 

	g.  on 24 March 1978, for failing to go at the prescribed time to his appointed place of duty, on or about 7 March 1978.  His punishment consisted of reduction to PV2/E-2 (suspended until 24 June 1978) and 7 days of restriction; 

	h.  on 5 July 1978, for being AWOL during the period on or about 18 June 1978 through on or about 19 June 1978.  His punishment consisted of 7 days of extra duty;

	i.  on 8 August 1978, for disobeying a lawful order form a commissioned officer, on or about 26 July 1978, being disrespectful in language toward a superior NCO, on or about 26 July 1978, and wrongfully communicating a threat toward a superior NCO, on or about 26 July 1978.  His punishment consisted of reduction to PV2/E-2, 30 days of extra duty, and 30 days of restriction; 

	j.  on 30 July 1979, for disobeying a lawful order in that he failed to report to motor stables and repair three tires, on or about 17 July 1979, and wrongfully using a false individual sick call slip, on or about 19 July 1979.  His punishment consisted of reduction to PV2/E-2 (suspended until 30 September 1979), forfeiture of $109.00 pay for one month, 7 days of restriction (suspended until 30 September 1979), and 14 days of extra duty.  However, on 7 August 1979, the suspension of punishment of reduction to PV2/E-2 and 7 days of extra duty imposed on 30 July 1979, was vacated and the unexecuted portion was ordered executed;  and

	k.  on 15 October 1979, for wrongfully possessing some amount of marijuana, on or about 3 October 1979, and wrongfully violating a general regulation by having in his possession one roach clip, one pair of tweezers, and a wooden pipe, all containing marijuana residue, on or about 28 June 1979.  His punishment consisted of reduction to PVT/E-1 (suspended for 21 days), forfeiture $97.00 pay for one month (suspended for 21 days), and 5 days of extra duty.  However, on 22 October 1979, the punishment of reduction to PVT/E-1 and forfeiture of $97.00 pay for one month, suspended for 21 days, imposed on 15 October 1979, was remitted.

4.  Consistent with his pattern of indiscipline, during his second period of service beginning 30 October 1979, on 23 February 1980, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully possessing 0.2 grams, more or less, of marijuana, on or about          12 February 1980, and wrongfully using marijuana, on or about 12 February 1980.  His punishment consisted of reduction to PVT/E-1, forfeiture of $100.00 pay for two months, and 45 days of extra duty.

5.  On 18 June 1980, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 18 March 1980.  He remained in this status until he surrendered to military authorities in Memphis, Tennessee, on 11 August 1980. 

6.  On 21 August 1980, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 26 February 1980 until on or about 11 August 1980.  

7.  On 22 August 1980, 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 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 (AR) 635-200 (Personnel Separations).

8.  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 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  On 15 September 1980, the applicant's immediate commander remarked that the applicant’s conduct had rendered him triable by court-martial under circumstances which could have lead to a bad conduct discharge or dishonorable discharge.  He added that there did not appear to be any reasonable effect of any rehabilitative efforts.  He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions character of service. 

10.  On 15 September 1980, the applicant’s intermediate commander remarked that the applicant would never be a productive member and further recommended the request be approved with the issuance of an under other than honorable conditions character of service.

11.  On 17 September 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 28 October 1980, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge 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 3 years and 6 months of creditable active military service and had 175 days of lost time.

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.  AR 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.  AR 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.



15.  AR 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 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 discharge should be upgraded.

2.  The evidence of record shows that the applicant was 19 years of age at the time of his first enlistment and 23 years of age at the time of the misconduct that led to his discharge.  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 acts of indiscipline were the result of his age.

3.  The applicant’s contention that his life was threatened as a result of his involvement with drugs and/or a drug dealer was considered; however, it was found to be without merit.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows that his history of misconduct and/or AWOL was a result of an alleged threat to his life.  Even if he encountered drug abuse and/or a threat to his life, he had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

4.  Contrary to the applicant’s contention that his misconduct was a result of drug abuse, his record shows that he had an extensive history of indiscipline that range from minor infractions of disobeying orders to the more serious misconduct of possession and use of marijuana, AWOL, and communicating a threat, as evidenced by his acceptance of nonjudicial punishment under the provisions of Article15 of the UCMJ on 12 different occasions.  Although his ultimate discharge was based on his last instance of misconduct (AWOL), this misconduct is consistent with his pattern of indiscipline that spanned throughout his entire military career.

5.  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 AR 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.

6.  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 either a general or an honorable 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.



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               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)                                         AR20080016874



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ABCMR Record of Proceedings (cont)                                         AR20080016874



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