IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011824 


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 general under honorable conditions discharge be upgraded.

2.  The applicant states, in effect:

* his discharge should be upgraded to receive service-connected benefits
* he is unable to work with the Marshals office
* he is unable to join a Veteran’s Organization and march in the Veteran’s Day Parade

3.  The applicant provided letters from a current and former employer as well as several letters from various Marshals offices.

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 record shows he enlisted in the Regular Army on 30 April 1977.  He completed his training in one station unit and was awarded MOS 36K10 (Tactical Wire Operator Specialist).

3.  	Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 February 1979, for stealing two cartons of cigarettes at Camp Casey, Korea.  Records further show the applicant was apprehended, on 15 November 1979, at Camp Casey, Korea for selling and being in possession of marijuana.

4.  On 2 January 1980, charges were preferred against the applicant for the possession and sale of marijuana. 

5.  On 8 January 1980, the applicant consulted with legal counsel and was advised of the basis for contemplated trial by court martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting a 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 or dishonorable discharge.  He further acknowledged he understood that if his discharge request were 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 Laws.

7.  On 9 January 1980, the company commander recommended approval of the applicant’s request for discharge and the issuance of a general discharge. 

8.	On 15 January 1980, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 30 January 1980, the applicant was discharged 


accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 2 years, 9 months, and 11 days of creditable active service.

9.  On 12 March 1981, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge.

10.  In a statement provided to the ADRB, the applicant and his counsel stated his discharge was too harsh for the following reasons:

* the marijuana was for use, not sale
* the commander recommended a better discharge
* his successfully completed 2 years, 6 months, and 26 days of service before the incident

11.  The ADRB board proceedings acknowledged the applicant was found to be in possession of marijuana; however, the charge for sale could not be substantiated as there was not enough evidence.  It further stated that the applicant’s immediate and intermediate commanders recommended a general discharge and that his characterization of undesirable was directed by the General Court-Martial Approving Authority.  Lastly, the record showed the applicant had in excess of 2 years and 9 months of good service before the incident that led to his separation and that he was promoted to the grade of Specialist 4.  On 7 April 1982, the ADRB concluded that the discharge was too harsh considering the evidence only showed the applicant to be a user and possessor of marijuana and in light of his otherwise overall good service record, that the characterization of his service as undesirable was too harsh.  Therefore, his discharge was upgraded to general under honorable conditions.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  At the time, an under other than honorable conditions discharge was normally considered appropriate.

14.  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 otherwise so meritorious than any characterization would be clearly in appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant's record shows he was charged with the commission of offenses 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.  

3.  The applicant's discharge was previously upgraded to general under honorable conditions by the ADRB; however, his record of service shows that he accepted discipline for stealing.  Furthermore, the applicant was found to be in possession of marijuana while stationed at Camp Casey, Korea. 

4.  Although the applicant's records show he completed over two years of good service prior to the incident, his subsequent actions do not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge. 

5.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.

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)                                         AR20100011824





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ABCMR Record of Proceedings (cont)                                         AR20100011824



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