IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100018164 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was in the wrong place at the wrong time.  He adds that it has been almost 30 years since he was discharged, he has gone blind in his left eye, and he needs medical care.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 10 July 1979 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  On 24 November 1980, the applicant's company commander preferred court-martial charges against the applicant for violation of Article 134 (three specifications), Uniform Code of Military Justice (UCMJ), for wrongfully possessing, transferring, and selling marijuana.

4.  On 29 December 1980, the applicant consulted with legal counsel and he 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.  He acknowledged that he was guilty of the charges against him, or of lesser included offenses therein contained, which also authorize the imposition of a bad conduct or dishonorable 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, 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 under other than honorable conditions discharge.
   
   b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  Records show the applicant submitted a statement in his own behalf.  He stated, in pertinent part,
"I was really mad because not only had I not sold any marijuana but I didn't even use the stuff.  I went to speak with my lawyer about the case.  She told me that I didn't have a chance if I went to court because no one would believe my word over the word of the MP [Military Police].  At first I was sore; I was going to fight the charges.  However after my lawyer told me what punishment I would get should I be convicted, and that she was sure that I would be convicted, there seemed to be no other choice but to request the chapter 10."

5.  On 8 January 1981, 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 (PV1)/E-1 and be issued an Under Other Than Honorable Conditions Discharge Certificate.
6.  The applicant's DD Form 214 shows he was discharged on 20 January 1981 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with service characterized as under other than honorable conditions.  At the time he had completed 1 year, 6 months, and 
11 days of net active service.

7.  On 26 February 1982, 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.  On 1 November 1982, after consideration of the applicant's military records and all other available evidence, the ADRB unanimously determined the applicant's discharge was both proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

8.  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 any illegal drug offense under Article 134.

9.  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 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.

	b.  Paragraph 3-7b, 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 evidence of record shows the applicant voluntarily submitted a request for discharge in lieu of trial by court-martial and acknowledged that he was guilty of the charges against him, or of lesser included offenses, which also authorized 


the imposition of a bad conduct or dishonorable discharge.  Thus, the evidence of record refutes the applicant's contention that the charges that led to his discharge were simply due to him being in the wrong place at the wrong time.

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 was charged with three specifications under Article 134, UCMJ.  The evidence of record also shows he voluntarily requested discharge in lieu of court-martial and completed only about one-half of his 3-year enlistment commitment.  Thus, the evidence of record shows that 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 discharge upgrade.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans/medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20100018164



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ABCMR Record of Proceedings (cont)                                         AR20100018164



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