IN THE CASE OF:	  

		BOARD DATE:	       5 February 2009

		DOCKET NUMBER:  AR20080017506 


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 the narrative reason for separation “in lieu of trial by court-martial” on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed. 

2.  The applicant states that he was never charged with a crime.  No trial was performed.  He also states that he was a good Soldier and cites his awards.

3.  The applicant provides copies of his DD Form 214, his general discharge certificate, a six page hand written letter and a two page hand written letter appealing for "a second chance."

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 enlisted in the Regular Army on 29 July 1997.  He completed training and progressed to pay grade E-4.

3.  On 6 November 2000, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for using marijuana between 20 August and 19 September 2000.  The punishment imposed by the battalion commander consisted of reduction to pay grade E-2, a forfeiture of $500 pay per month for 2 months and restriction and extra duty for 45 days.  Upon appeal, the brigade commander mitigated the forfeiture to $400 pay per month for 2 months.  

4.  The record does not reflect when he was again advanced to pay grades E-3 and E-4.

5.  On 4 October 2001, charges were preferred against the applicant for using marijuana between on or about 31 July and 30 August 2001, wrongfully possessing marijuana on or about 24 August 2001 and for possession of drug paraphernalia (a pipe containing marijuana residue) on or about 29 August 2001. The charges were referred to a special court martial empowered to adjudge a bad conduct discharge.

6.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

7.  The applicant acknowledged in his 4 October 2001 request for discharge that he understood by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 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 5 November  2001, the applicant signed a pretrial agreement in which he admitted in a sworn statement that the marijuana belonged to him and four other Soldiers, including one named L____ who had sold them the marijuana for $20; 

that they had all five smoked the marijuana in the pipe found in his car about
4 hours before he was stopped at the gate.  The applicant also stated that he had purchased marijuana from L____ on at least five previous occasions.  The applicant agreed to cooperate with authorities in gathering evidence against L____ and to testify truthfully if called upon to do so.  The convening authority agreed to approve the applicant's request for discharge in lieu of trial by court martial.

9.  The company, battalion and brigade commanders recommended approval of the applicant's request for discharge and recommended an under other than honorable conditions (UOTHC) discharge. 

10.  On 12 December 2001, the separation authority approved the applicant's request for discharge in lieu of trial by court martial, and directed that he be issued a UOTHC discharge and reduced to pay grade E-1. 

11.  On 21 December 2001, the applicant was separated from active duty in pay grade E-1 with a UOTHC discharge under the provisions of Army Regulation 635-200, chapter 10.  He had completed 4 years, 4 months and 23 days of active duty service and he had no lost time.  His DD Form 214 lists his awards as the Army Commendation Medal, Army Achievement Medal (2nd Award), Army Good Conduct Medal, Armed Forces Expeditionary Medal, Army Service Ribbon, North Atlantic Treaty Organization Medal, Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar. 

12.  Army Regulation 635-200 (Personnel Separations) 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.

13.  On 11 September 2002, the Army Discharge Review Board (ADRB) considered the applicant request to upgrade the discharge and determined that the characterization was inequitable.  The ADRB upgraded the applicant’s discharge to general under honorable conditions and left the reason for the discharge unchanged.


14.  In the letters attached to the application, the applicant stated that his discharge stems from the worst decision of his life.  He wanted to celebrate the birth of his second daughter with his friends, but there had been a crack-down on Soldiers driving under the influence of alcohol so he decided to smoke marijuana. Ultimately, he was stopped at the gate and a search of his car produced a small amount of marijuana and a pipe.  Eventually, he agreed to help gather evidence against the individual who was supplying drugs to his unit.  He lost his family and his place in the Army, which was the best thing that ever happened to him.  He made a small mistake, but he believes that everyone deserves a second chance. He thinks that punishment should fit the crime and he has been punished enough.  A lot of convicted felons get a second chance but he was never even convicted of anything.  His fiancé is on active duty in the Air Force and he influenced her to join.  He is an active member of the local Veterans of Foreign Wars.  He would like another opportunity to serve his country.  He has applied to law enforcement agencies, but his discharge always causes his applications to be rejected.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the narrative reason for separation “in lieu of trial by court-martial” on his DD Form 214 be changed. 

2.  The discharge proceedings were conducted in accordance with applicable law and regulations.  The reason for the discharge precisely fits the circumstances of the case and the applicant has offered no alternative reason that could be applied.

3.  The applicant requested a second chance.  He received nonjudicial punishment on 6 November 2000 for use of marijuana.  On 4 October 2001, he was charged with a second marijuana related offense and he was allowed to accept discharge rather than face trial by court-martial which could have led to a bad conduct discharge.  Therefore, he was allowed a second chance.  He was given yet another chance when the ADRB upgraded his discharge to a general discharge under honorable conditions.  The applicant has not established a basis for further upgrade of his discharge.

4.  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)                                         AR20080017506



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ABCMR Record of Proceedings (cont)                                         AR20080017506



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