IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100008032 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he served 5 1/2 years active military service and 2 years of inactive service.  He needed to help his wife and daughter.  He went to his platoon sergeant and to the Red Cross for assistance but received no help.  He was told that his discharge would be upgraded to honorable after 6 months. 

3.  The applicant did not provide any additional documentary evidence 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 for a period of 4 years on 8 August 1978 and he held military occupational specialty 36C (Wire Systems Installer/Operator).

3.  His records also show he served two tours in Germany and he was awarded the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 18 January 1983, while assigned to the 72d Signal Battalion, located in Massweiler, Germany, court-martial charges were preferred against him for the following specifications that occurred on or about 1 December 1982:

* possession of drug paraphernalia
* wrongfully possess 19 grams of marijuana in the hashish form, with intent to distribute 
* knowingly and wrongfully use marijuana in the hashish form

5.  On 27 January 1983, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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 requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  Finally, he acknowledged there was no automatic upgrading or review of a less than honorable discharge and he would have to apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished review of his discharge.

7.  On 7 February 1983, his immediate commander recommended approval of the request for discharge with the issuance of an under other than honorable conditions discharge.

8.  On 11 February 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service.  He further directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  On 16 March 1983, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of a court-martial, with a characterization of service of under other than honorable conditions.  This form further shows he completed a total of 4 years, 7 months, and 9 days of creditable active service.

10.  There is no indication in his records that he petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Under the UCMJ, the maximum punishment allowed for possession and/or use of less than 30 grams of marijuana is a dishonorable discharge and confinement for 2 years.

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 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.


14.  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 his discharge should be upgraded to honorable was carefully considered; however, there is insufficient evidence to grant relief.

2.  His records show he was charged with the commission of offenses 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.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His record of service included three offenses punishable under the UCMJ for the possession of drug paraphernalia, possession of marijuana in the hashish form with intent to distribute, and knowingly and wrongfully use marijuana in hashish form.

4.  There is no evidence in the available records nor did he provide any substantiating evidence that shows he requested assistance from the Red Cross or his chain of command in order to help his family or that he was denied such assistance.

5.  Based on his record of indiscipline, the applicant's 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 either a general or an 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)                                         AR20100008032



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ABCMR Record of Proceedings (cont)                                         AR20100008032



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