IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100017752 


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 states that he spent 2 1/2 years out of 3 years in service.  He was kicked out for a one-time offense of selling a small quantity of hash, while draft dodgers were pardoned.  He adds that he is better than a draft dodger; they should have been punished and they were not.  He finally adds that he should not have been punished and he was.  He lastly states this is a case where wrongs can be made right.

3.  The applicant provides no additional documents 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 11 October 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 16E (Hawk Fire Control Crewman).  The highest rank/grade he attained was private first class (PFC)/E-3.

3.  Between February 1975 and December 1976, the applicant received three nonjudicial punishment (NJP) actions under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on
24 January 1975, being absent from his unit from 13 March 1975 to 24 March 1975, for having in his possession a switchblade knife, and for having in his possession a club-type weapon.  His punishments consisted of forfeitures and confinements at the Correctional Custody Facility for a total of 28 days.

4.  On 15 March 1977, the applicant was arraigned before a special court-martial for two specifications of wrongfully selling over 11.67 grams, more or less, of marijuana and two specifications of wrongfully possessing over 11.67 grams, more or less, of marijuana.  The special court-martial proceedings were terminated by withdrawal of the charges and specifications by the General Court-Martial Convening Authority due to the subsequent voluntary administrative discharge of the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a DD Form 214 which shows the applicant was discharged on 28 March 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and that he received a discharge under conditions other than honorable.  It further shows that the applicant at the time of his discharge had completed a total of 2 years, 5 months, and 6 days of active service.

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

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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 discharge under other than honorable conditions is normally considered appropriate.

8.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  Army Regulation 635-200, paragraph 3-7b, states 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 request for an upgrade of his discharge was carefully considered.  Although the specific facts and circumstances surrounding the applicant's final discharge proceedings are not available, the evidence does include a DD Form 214 that identifies the authority and reason for the applicant’s discharge.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of service – in lieu of court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant's acceptance of NJP actions on three separate occasions clearly diminished the overall quality of his service far below that meriting an honorable or a general discharge.  Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

2.  In view of the foregoing, there is no basis for granting the applicant’s request. 

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)                                         AR20100017752



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ABCMR Record of Proceedings (cont)                                         AR20100017752



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