IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012845 


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 discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states his commander told him he would receive a general discharge and he has earned an associate's degree. 

3.  The applicant provides three pages from his discharge packet, a statement of support, a letter of thanks, a college transcript, and a set of orders.

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 25 June 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 64C (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  On 11 June 1980, at Gelnhausen, Germany, his command preferred court-martial charges against him for six specifications of possession, sale, and transfer of marijuana and hashish on 20 and 21 May 1980.

4.  On 15 July 1980, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the Uniformed 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 

5.  In his request for discharge, he acknowledged he understood by requesting discharge if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

6.  On 15 July 1980, his immediate commander recommended approval of his discharge with the issuance of a General Discharge Certificate and stated the applicant committed an offense that was contrary to good conduct and discipline.  On 8 August 1980, his battalion commander concurred with the recommendation.

7.  On 11 August 1980, his brigade commander recommended approval of his discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 28 August 1980, the staff judge advocate recommended approval of his discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate due to the applicant facing criminal charges for six specifications of possession, sale and transfer of marijuana and hashish.

9.  On 28 August 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed he be reduced to private/E-1 and issued an Under Other Than Honorable Conditions Discharge Certificate.  On                   18 September 1980, he was accordingly discharged.  The DD Form 214 (Certificate of Release from Active Duty) he was issued shows he completed a total of 1 year, 2 months, and 24 days of creditable active military service.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant provides three pages from his discharge packet reflecting the chain of command's recommendations for the type of discharge certificate he should be issued.

12.  A statement of support, dated 17 April 2010, states, in effect, he is an upstanding citizen and well-liked friend.  In a letter, dated 22 March 1995, the county sheriff thanks the applicant for his support of law enforcement.  In addition, he provides a college transcript, dated 18 May 1995, indicating he earned an associate's degree and a copy of orders reassigning him to the separation transfer point.
 
13.  Army Regulation 635-200, in effect at the time, 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.  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.
 
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 requests his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  His 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.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

3.  He contends his commander said he would receive a general discharge.  However, his record shows on 15 July 1980, he acknowledged he understood by requesting discharge if the discharge request was approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

4.  His record of service shows the he was charged with six specifications of possession sale, and transfer of marijuana and hashish which was the basis for his voluntary discharge.  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 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)                                         AR20100012845





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ABCMR Record of Proceedings (cont)                                         AR20100012845



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