IN THE CASE OF:	 

		BOARD DATE:	3 May 2011

		DOCKET NUMBER:  AR20100026938 


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, that his under other than honorable conditions discharge be upgraded.

2.  He states, in effect, he was told the discharge would be upgraded to honorable within a year.

3.  The applicant provides no additional evidence to support his request.

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 on 21 November 1977.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was subsequently assigned to Fort Ord, CA.
3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 1 August 1978 for being absent without authority from 21 July 1978 until 24 July 1978 
* 21 April 1980 for wrongful possession of marihuana seeds

4.  On 13 January 1981, charges were preferred against him under the UCMJ for violation of Article 81, conspiring with another Soldier to sell marijuana; and two violations of Article 134, wrongfully selling marijuana, and wrongfully possessing marijuana.

5.  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he understood that he would receive a UOTHC discharge and that he understood he would be deprived of many or all Army benefits and that he might be ineligible for veteran's benefits administered by the Veterans Administration.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated he had received legal advice but the request had been made voluntarily and it reflected his own free will. 

6.  On 6 March 1981, the separation authority approved the applicant's request for discharge and directed that he be discharged UOTHC.

7.  On 13 March 1981, the applicant was discharged accordingly.  He had completed a total of 3 years, 3 months, and 20 days of creditable active military service.

8.  On 21 February 1997, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the 
authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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 contends that his discharge should be upgraded because he was told it would change to honorable within one year.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Additionally, there is no procedure for automatic upgrade for a discharge within a year.

3.  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 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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20100026938



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