IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014706 


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 to a general, under honorable conditions discharge.

2.  The applicant states that he feels he did not do anything wrong.  All he did was sell sleeping pills to another Soldier as a favor so he could make a few dollars.  Those pills were over-the-counter pills; yet, he was treated like a drug dealer.  His first sergeant then offered him an early discharge with less than 7 months left on his enlistment contract.  He feels that he was not a bad person and that other people took him as the fall guy because he could not make rank as fast as others.  He would now like his discharge upgraded so he may receive educational benefits under the GI Bill.

3.  The applicant provided an undated self-authored statement restating his request and the reason for the upgrade in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 8 March 1977.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Germany from on or about 1 July 1977 to on or about 18 August 1979.

4.  The applicant’s record reveals a history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 28 June 1978, for failing to go at the time prescribed to his appointed place of duty on or about 16 June 1978.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $75.00 pay, and 14 days of extra duty;

	b.  on 20 February 1979, for being found drunk while on duty on or about 6 February 1979.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $50.00 pay, and 14 days of extra duty; and

	c.  on 23 April 1979, for twice willfully disobeying a lawful command on or about 26 March and 10 April 1979.  His punishment consisted of a reduction to PVT/E-1, a forfeiture of $50.00 pay, 7 days of restriction, and 14 days of extra duty.

5.  On 19 June 1979, court-martial charges were preferred against the applicant for one specification of violating a lawful regulation by wrongfully and unlawfully possessing five tablets of Mandrax on or about 20 October 1977 and one specification of violating a general regulation by wrongfully and unlawfully selling Mandrax.

6.  On 6 July 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures 
and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation
 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 12 July 1979, the applicant's immediate commander remarked that the applicant had been a constant disciplinary problem during his service with that unit and that he had several NJPs and counseling statements concerning his problems but could not conform to the standards expected of a Soldier in the U.S. Army.  He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions character of service.

9.  On 17 and 19 July 1979, respectively, the applicant’s intermediate and senior commanders recommended approval of the applicant's discharge and each remarked that due to the seriousness of the offense committed, the applicant should be issued an under other than honorable conditions character of service.

10.  On 26 July 1977, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10 and directed that he receive an under other than honorable conditions discharge and that he be reduced the lowest enlisted grade.  On
20 August 1979, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 5 months, and 13 days of creditable active military service.

11.  There is no evidence of record 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.
12.  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.

13.  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 contends that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge.

2.  The applicant's charge sheet does not show he was charged with being a drug dealer; he was charged with violating a general regulation.  Regardless of whether the pills were sold over-the-counter or not, at the time of his possession and sale of the pills, the NJP shows that there was a general regulation that disallowed the possession and sale of such pills and that he violated it.  Additionally, the applicant could have elected trial by court-martial.  He consulted with counsel, he was advised of his rights, and he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In order to justify correction of a military record, the applicant must show, 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.  

6.  Based on the applicant's record of indiscipline, his service clearly did 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, under honorable conditions or honorable 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)                                         AR20090014706



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ABCMR Record of Proceedings (cont)                                         AR20090014706



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