IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090007096 


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 undesirable discharge be upgraded.  

2.  The applicant states, in effect, he needs his discharge upgraded so that he may be eligible for Department of Veterans Affairs (VA) benefits.  He also states that he was proud to be a Soldier, he was advanced to E-4, and proudly "loaded up" and went any time he was needed.  He states he was young and made some wrong choices which ended his career.  He states he does not want anyone to believe he did not want to finish his enlistment.  But he has reached the point in his life where he needs medical treatment.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 9 December 1976.

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 military personnel records show he enlisted in the Regular Army, on 6 May 1974, at the age of 18, for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  On 19 September 1975, the applicant was assigned to Troop C, 
1st Squadron, 17th Cavalry, Fort Bragg, NC.

4.  On 13 March 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful possession of marijuana.

5.  On 6 August 1976, court-martial charges were preferred against the applicant for wrongful possession of hashish, wrongful sale of hashish, three specifications of wrongful possession of marijuana, and three specifications of wrongful sale of marijuana.

6.  The applicant's request for discharge in lieu of court-martial and subsequent approval for discharge were not available for review.

7.  On 9 December 1976, the applicant was discharged under the provisions of 
chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service, and he was issued an Undesirable Discharge Certificate.  He had completed 2 years, 7 months, and 4 days of active service.  

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

9.  Army Regulation 635-200 sets forth the basic authority for the administrative 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 trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

10.  Army Regulation 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.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s age at time of enlistment was considered.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and received honorable discharges.  In fact, the applicant was 20 years of age at the time the court-martial charges were preferred against him.  Therefore, the applicant’s age is not sufficiently mitigating for the upgrade of his discharge.

2.  Although the applicant's complete separation package was not available, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, he would have requested the discharge after the charges had been preferred against him for an offense for which the authorized punishment includes a punitive discharge.  He would have had to admit his guilt, and acknowledge that he could receive an undesirable discharge.  



3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  The applicant was charged with possession and distribution of illegal drugs, which are serious offenses.

5.  Discharges are not upgraded solely on the passage of time nor solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

6.  In view of the above, there is an insufficient basis to upgrade the characterization of the applicant's discharge to honorable or general under honorable conditions.

7.  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 that 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)                                         AR20090007096



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ABCMR Record of Proceedings (cont)                                         AR20090007096



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