IN THE CASE OF:	

		BOARD DATE:	 26 January 2010 

		DOCKET NUMBER:  AR20090013804


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was young and immature when he enlisted in the Army more than 30 years ago, and he has grown and matured.  He is a good citizen in his community, he is a good husband, father and grandfather.  He works hard and attends church.

3.  The applicant provides a copy of his wife's Social Security Card, a Certificate of Marriage, a letter of support from a friend, and a letter from the Chief of Police.

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 was born on 12 February 1956.  He enlisted in the Regular Army for 3 years on 17 June 1976; he was 20 years old.

3.  The applicant was trained at Forts Jackson, SC and Fort Benning, GA and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He was then assigned to Company C, 2nd Battalion, 502nd Infantry, Fort Campbell, KY for his first permanent duty assignment.

4.  The applicant's records show he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession some marijuana on or about 19 January 1978, for which he received a reduction from pay grade E-3 to pay grade E-2 (suspended until
23 April 1978), a forfeiture of $107 pay for 2 months (so much of the forfeiture in excess of 1 month was suspended until 23 April 1978), and correctional custody for a period of 30 days.

5.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by special court-martial empowered to impose a bad conduct discharge.  In connection with such a discharge, the applicant was charged with the commission of an offense (according to a DA Form 268 (Report of Suspension of Favorable Action), possession, transfer and sale of a controlled substance) punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

6.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.  

7.  Army Regulation 635-200 provides guidance on characterization of service:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 would like an honorable discharge.  He cites his youth and immaturity and the more than 30 elapsed years as justification.  He states he is a mature family man and good citizen today.

2.  The applicant was 20 years old when he enlisted in 1976; youth was not a factor.  Although he may have been immature, he appears to have been no less mature than other 18, 19, or 20 year old Soldiers who successfully completed their terms of enlistment.

3.  The applicant was involved with drugs.  He used marijuana and accepted NJP for that use.  He was also under court-martial charges for the possession, transfer and sale of a controlled substance, for which he could have received a bad conduct discharge if convicted.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial action and the punitive discharge that he might have received.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.

5.  The applicant is commended for having lived a productive and peaceful life since his discharge; however, this in and of itself, is not sufficient grounds for upgrading his 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.



      _______ _   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)                                         AR20090013804



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ABCMR Record of Proceedings (cont)                                         AR20090013804



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