IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100016284 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he was not actually charged or convicted of a crime; however, he was coerced into accepting a discharge in lieu of trial by court-martial.  He states he has been a productive member of society for the past
35 years and he is the father of six children who are also productive members of society.

3.  The applicant provides no additional documentary evidence 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 for a period of 3 years on
25 January 1972.  Upon completion of training he was awarded military occupational specialty 64C (Motor Transport Operator).  He was assigned to U.S. Army Europe (Germany) on 10 September 1972.

3.  Headquarters, 559th Engineer Battalion, Summary Court-Martial Order Number 2, dated 14 March 1974, shows that at a summary-court martial the applicant pled guilty and was found guilty of the charge and specification of wrongfully and unlawfully having in his possession a contraband substance (i.e., 60 grams more or less of marijuana) on or about 27 October 1973.  He was sentenced to reduction to private first class (E-3) (suspended for 60 days), a forfeiture of $265.00 pay, and 30 days of restriction.  On 14 March 1974, the convening authority approved only so much of the sentence as provided for a forfeiture of $265.00 pay and 30 days of restriction, and ordered it executed.

4.  On 1 August 1974, the applicant's company commander forwarded the court-martial charges that were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 81, for conspiring to sell hashish from November 1973 to June 1974, and violation of the UCMJ, Article 134, for selling hashish with eight specifications (during each of the months of November 1973 through June 1974).

5.  On 12 November 1974, the applicant consulted with legal counsel and voluntarily requested a 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 advised 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 (VA), 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 if he was issued an undesirable discharge.
   
   b.  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.

6.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an undesirable discharge.
7.  On 16 December 1974, 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.  He also directed the applicant be reduced to the rank/pay grade of private/E-1 and issued an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 2 January 1975 in accordance with Army Regulation
635-200, chapter 10, for the good of the service - in lieu of a court-martial with an undesirable discharge.  At the time he had completed 2 years, 11 months, and 8 days of net active service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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 81 for conspiracy.  A punitive discharge is also authorized for offenses under Article 134.

11.  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, provides 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 VA 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.  Chapter 3, paragraph 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.

	c.  Chapter 3, paragraph 7b, provides that an under honorable conditions discharge 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 undesirable 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 a 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 was convicted at a summary court-martial for wrongfully and unlawfully having in his possession a contraband substance on 27 October 1973.  The evidence of record also shows that court-martial charges were subsequently preferred against the applicant for conspiring to sell hashish, and for selling hashish with eight specifications (during each of the months of November 1973 through June 1974):

   a.  The evidence of record shows the applicant voluntarily submitted a request for discharge in lieu of trial by court-martial.  Thus, the evidence of record refutes the applicant's contention that he was coerced into accepting a discharge in lieu of trial by court-martial.

   b.  The evidence of record shows 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 a general or honorable discharge.

4.  The applicant's post-service conduct and contributions to society were considered; however, they are not sufficiently mitigating to warrant relief.





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)                                         AR20100016284



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ABCMR Record of Proceedings (cont)                                         AR20100016284



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