IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100021615 


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 to a general discharge.

2.  The applicant states his discharge was harsh and inconsistent.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 August 2005.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the character of the applicant's discharge.

2.  Counsel states the issues raised amply advance the applicant's contention and substantially reflect the probative facts needed for equitable review.  Counsel rests this case on the evidence of record.

3.  Counsel provides no additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 February 2001 for a period of 3 years.  He had 10 months and 26 days previous active service and 9 months and 16 days of inactive service.  His military occupational specialty was 92Y (Unit Supply Specialist).  He was honorably discharged on 6 November 2003 and he immediately reenlisted on 7 November 2003 for a period of 3 years.
2.  On 28 October 2004, he received a letter of reprimand for wrongfully touching a private, a Soldier in training.

3.  On 14 January 2005, he accepted nonjudicial punishment (NJP) for willfully disobeying a lawful order from a first sergeant to report for a urinalysis.

4.  On 6 July 2005, court-martial charges were preferred against the applicant for:

* wrongfully possessing approximately 13.4 grams of marijuana, a controlled substance
* wrongfully using marijuana, a controlled substance

5.  On 12 July 2005, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate

6.  In addition, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  On 15 July 2005, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed his reduction to private (PV1)/E-1 and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 1 August 2005, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He received an under other than honorable conditions discharge for this period of service.
9.  On 4 May 2007, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for discharge upgrade.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

10.  On 17 August 2007, after a personal hearing before the ADRB, the ADRB again denied his request for a discharge upgrade.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  

	a.  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.

	b.  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.

12.  The Manual for Courts-Martial (MCM) (1995 edition) states the maximum punishment for:

* possession of less than 30 grams of marijuana is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for
2 years
* wrongfully using marijuana is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge 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.
2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  There is no evidence of procedural or other errors that would have jeopardized his rights.

3.  If the applicant had been tried by a general court-martial and convicted of the charges preferred against him he could have been sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and 7 years confinement.  He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge.  Therefore, the characterization of his discharge is not considered to be too harsh and it is consistent with the type of discharge normally given to Soldiers who request a discharge under the provisions of Army Regulation 635-200, chapter 10.

4.  His conduct had slowly started to deteriorate since his reenlistment in November of 2003.  He received a letter of reprimand for wrongfully touching a Soldier and accepted NJP for failing to obey an order.  He was then charged with wrongfully using and possessing marijuana.  This shows his service during this period to be unsatisfactory.   Therefore, there is insufficient substantive evidence in which to base an upgrade of his 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)                                         AR20100021615



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ABCMR Record of Proceedings (cont)                                         AR20100021615



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