IN THE CASE OF:	  

		BOARD DATE:	    7 October 2010

		DOCKET NUMBER:  AR20100010998 


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 makes no statement.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 enlisted in the Regular Army for a period of 3 years on 23 February 1977.  Upon completion of training he was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 20 May 1977, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using provoking words and gestures.  His punishment consisted of forfeiture of $100.00 pay for 2 months, 20 days of restriction, and 20 days of extra duty.

4.  On 11 July 1977, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 6 July 1977.  His punishment consisted of forfeiture of $87.00 pay, 7 days of restriction, and 7 days of extra duty.

5.  On 27 December 1977, the applicant received NJP under Article 15, UCMJ, for failing to go at the times prescribed to his appointed place of duty on 14 and 15 December 1977.  His punishment consisted of forfeiture of $70.00 pay and 14 days of extra duty.

6.  On 10 January 1978, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 7 January 1978.  His punishment consisted of forfeiture of $75.00 pay, reduction to private (E-1), and 7 days of extra duty.

7.  On 17 March 1978, the applicant received NJP under Article 15, UCMJ, for being derelict in the performance of his duties by willfully failing to be prepared for his unit's standby room inspection on 17 March 1978.  His punishment consisted of forfeiture of $50.00 pay and 7 days of extra duty.

8.  On 27 April 1978, the applicant received NJP under Article 15, UCMJ, for breaking restriction, wrongfully appropriating a U.S. Government vehicle valued at about $2,229.00, and operating said vehicle while drunk on 16 April 1978.  His punishment consisted of forfeiture of $150.00 pay for 2 months and 45 days of restriction.

9.  On 23 May 1978, the applicant received NJP under Article 15, UCMJ, for failing to go at the times prescribed to his appointed place of duty on 13, 14, and 15 May 1978.  His punishment consisted of 7 days of extra duty.

10.  On 6 June 1978, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 29 May 1978.  His punishment consisted of forfeiture of $100.00 pay and 14 days of extra duty.

11.  On 14 August 1978, charges were preferred against the applicant under Article 134, UCMJ, for wrongful use of marijuana on or about 6 July 1978 and under Article 86, UCMJ, for being absent without leave from 7 August to 9 August 1978.

12.  On 27 September 1978, the applicant consulted with legal counsel and voluntarily 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.

	b.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	c.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

13.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions.

14.  On 24 October 1978, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.

15.  The applicant's DD Form 214 shows he was discharged on 1 November 1978 in accordance with Army Regulation 635-200, chapter 10, for the good of the service with service characterized as under other than honorable conditions.  He completed 1 year, 6 months, and 27 days of net active service.

	a.  Item 21 (Time Lost) and item 27 (Remarks) show the applicant had 43 days of lost time (i.e., 7 and 8 August 1978 and 31 August 1978 through 10 October 1978) under Title 10, U.S. Code, section 972.

	b.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the Marksman Marksmanship Qualification Badge with Rifle Bar.

16.  On 22 January 1980, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge under other than honorable conditions.  On 11 June 1981, after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

17.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 134 for wrongfully using marijuana.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  This regulation 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.

	c.  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 his under other than honorable conditions discharge should be upgraded to honorable.

2.  The applicant's 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 was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  The evidence of record shows the applicant received NJP on eight occasions.  The evidence of record also shows the applicant wrongfully used marijuana, he had a total of 43 days (i.e., 1 month and 13 days) of lost time, and he completed only about half of his 3-year active duty obligation.  Thus, the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general 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)                                         AR20100010998



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ABCMR Record of Proceedings (cont)                                         AR20100010998



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