IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010822 


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 (UOTHC) discharge be upgraded to a general discharge.  

2.  The applicant states the following:

* He was issued a UOTHC discharge based on one case of having illegal drugs
* He was a promotable specialist (SPC) and he was reduced to the rank of private E-1 (PV1)
* Judge Advocate General (JAG) Corps personnel counseled him to take a UOTHC administrative discharge and an Article 15 vice a court-martial
* He does not deny he was wrong, but he was young and found himself “running with the wrong” crowd

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of 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 enlisted in the Regular Army on 7 August 1979 at age 18 and the highest rank that he attained was specialist four.  

3.  On 2 May 1980, the applicant was convicted by a summary court-martial of treating a senior noncommissioned officer with contempt and of failure to obey a lawful order.  He was sentenced to a forfeiture of $299.00 pay for 1 month, confinement at hard labor for 30 days and reduction to PV1.  

4.  On 5 June 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly.  

5.  Charges were preferred against the applicant on 21 January 1982 for wrongful possession of 14 grams, more or less, of marijuana in the hashish form.  

6.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged guilt to the offenses charged and that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

7.  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 with a UOTHC discharge.  

8.  The applicant was discharged from active duty on 19 March 1982 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 2 years, 6 months, and 22 days active military service with 21 days of lost time due to being in confinement.  

9.  On 29 January 1986, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 UOTHC discharge is normally considered appropriate.

11.  Paragraph 1–13 (Reduction in grade) of Army Regulation 635-200 states when a Soldier is to be issued a UOTHC discharge the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19, chapter 10.

12.  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 record shows he was charged with the commission of an offense (possession of marijuana) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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.  

2.  The applicant was discharged with a UOTHC characterization of service.  Therefore, he was reduced from SPC to the lowest enlisted grade of PV1.  

3.  The applicant was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined.

4.  The applicant’s service record shows he accepted nonjudicial punishment under Article 15, UCMJ for being drunk and disorderly and he was convicted by a summary court-martial of treating a senior NCO with contempt and failure to obey a lawful order.  



5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general discharge.

6.  Although the applicant contends he was young at the time he was discharged his age is not sufficiently mitigating to warrant relief in this case.  

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)                                         AR20100010822



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ABCMR Record of Proceedings (cont)                                         AR20100010822



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