IN THE CASE OF:	

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010160 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he served his country and feels he was a good Soldier.  He adds that he did not get into any major trouble.

3.  The applicant does not provide any additional information with 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 record shows he enlisted in the Regular Army (RA) and he entered active duty on 19 August 1980.

3.  On 8 June 1983, nonjudicial punishment was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without authority from his place of duty.  His punishment consisted of reduction to the rank/grade of private first class (PFC)/E-3 (suspended to be automatically remitted if not vacated before 8 December 1983) and extra duty for 14 days.

4.  On an unspecified date, the applicant submitted a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  Although a copy of the DD Form 458 (Charge Sheet) is not contained in the available records, the applicant's request shows that he was charged with violation of Article 134 of the UCMJ for wrongfully distributing 8.43 grams of marijuana in the hashish form on 22 September 1983.

5.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant elected not to submit a statement in his own behalf.

6.  On 11 January 1984, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  The applicant's DD Form 214 shows that he was discharged on 27 January 1984 with an under other than honorable conditions characterization of service.  He completed 3 years, 5 months, and 9 days of total 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 that board's
15-year statute of limitations.

9.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant’s voluntary request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

2.  The applicant has failed to provide evidence to show that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the requested upgrade.

3.  The applicant states that he served his country and did not get into any major trouble.  However, his records show that he received an NJP and court-martial charges were preferred against him for wrongfully distributing of marijuana in the hashish form.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting the applicant's requested relief.




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)                                         AR20090010160



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ABCMR Record of Proceedings (cont)                                         AR20090010160



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