IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100018586 


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 that his discharge be upgraded to honorable.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 12 months of service with no other adverse action.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), four witness' statements, and a self-authored statement.

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 was inducted into the Army on 14 January 1971.  He completed his initial entry training and was awarded the military occupational specialty 64C (Motor Transport Operator).

3.  He accepted nonjudicial punishment on 13 October 1971 for violating a lawful general regulation by having alcohol in his cubicle and for disobeying a lawful order from his superior noncommissioned officer.

4.  On 25 January 1972, he was found guilty by a summary court-martial of two specifications of disobeying a lawful order from a noncommissioned officer and for disobeying a lawful command from a commissioned officer.

5.  On 1 February 1972, court-martial charges were preferred against him for possession of a brass pipe containing traces of marijuana and for wrongful use of marijuana.

6.  On 1 March 1972, he consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to make a statement in his own behalf.

7.  On 3 March 1972, the appropriate authority approved his request and directed he receive an Undesirable Discharge Certificate.  On 10 March 1972, he was discharged with his service characterized as under other than honorable conditions.

8.  He provided witness statements, dated 27 and 28 January 1972, which describe the events that led to his court-martial charges, and a self-authored statement in which he essentially contends that he was not guilty of the marijuana charges and that he was framed.

9.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 16 August 1976.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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's contention that his discharge should be upgraded has been carefully reviewed.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The record shows that after consulting with defense counsel, he voluntarily requested discharge from the Army to avoid trial by court-martial.

3.  His voluntary 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 administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  He now claims he was not guilty of the charges and that he was framed; however, he had the opportunity to submit statements in his defense or to request trial by a court-martial which could have cleared him of the charges.

5.  His record of indiscipline includes nonjudicial punishment, a summary court-martial conviction for disobeying orders from commissioned and noncommissioned officers, and court-martial charges for possession of marijuana.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general, under honorable conditions discharge.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100018586



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ABCMR Record of Proceedings (cont)                                         AR20100018586



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