IN THE CASE OF:	

		BOARD DATE:	11 June 2009  

		DOCKET NUMBER:  AR20090003949 


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 undesirable discharge be upgraded to general.   

2.  The applicant states, in effect, that he was young at the time of his enlistment and only had an eleventh grade education.  He had completed basic training and was awaiting an assignment when a staff sergeant played a trick on him by claiming to have sold him marijuana that was actually oregano.   He knew marijuana was illegal but thought the staff sergeant was performing some sort of test before the troops.  However, it turned out to be a plot to have him kicked out of the service with a bad discharge.  He contends that he was a naïve youth at the time.  He has since been trying to improve his life but this incident is preventing him from doing so.  He believes that this incident should not be used against him forever.   He has tried to help others by training them to be good carpenters.  Unfortunately, today's economy has caused him difficulty in finding employment.  He is presently homeless.

3.  The applicant provides no additional documentation 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.  On 6 July 1976, the applicant enlisted in the Regular Army.  He was 17 years, 4 months and 26 days of age at the time and had completed 2 years of high school.  The applicant was assigned to Fort Sill, Oklahoma for one station unit training as an artilleryman.  There is no evidence showing he completed this training.

3.  On 23 August 1976, charges were preferred against the applicant under the provisions of Article 15, Uniform Code of Military Justice for violation of Article 91 for being disrespectful in language towards a superior noncommissioned officer, who was in the execution of his office; for violation of Article 92, failing to obey a lawful order; and for violation of Article 134, being drunk and disorderly.

4.  On 24 August 1976, 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. 

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

6.  On 17 September 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 22 September 1976, the applicant was discharged accordingly.  He had completed a total of 2 months and 17 days of creditable active military service.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 91, for being disrespect towards a superior noncommissioned officer is 6 months confinement and a punitive discharge; and for violation of Article 92, failing to obey a lawful order is 6 months confinement and a punitive discharge.

10.  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 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's contention that at the time of his enlistment he was young and had not completed high school is not sufficiently mitigating to warrant relief for his acts of misconduct.  His age and education qualified him for enlistment.

2.  The applicant's record is devoid of any redeeming service.  

3.  The applicant’s claim of good post-service conduct was considered.  However, it does not sufficiently mitigate his acts of indiscipline during his military service.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.



5.  Based on this record of indiscipline, which did not include a record of drug possession or use, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a general discharge.

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 the aforementioned requirement.

7.  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

_____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)                                         AR20090003949



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ABCMR Record of Proceedings (cont)                                         AR20090003949



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