IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029033 


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 undesirable discharge to an honorable discharge.

2.  He states "the level of discharge received does not reflect an appropriate view of the more matured individual in question."

3.  He provides:

* a self-authored statement
* four letters of support
* his DD Form 214 (Report of Separation 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 was born on 23 August 1955.

3.  He enlisted in the Regular Army (RA) on 10 February 1975 at the age 19 for a period of 3 years and for training in military occupational specialty 63H (Automotive Repairman).

4.  On 14 August 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession one ounce, more or less, of marijuana.  His punishment included a reduction to private (PV1)/E-1.

5.  A Report of Mental Status Evaluation, dated 12 October 1976, shows he was found to be mentally responsible, able to distinguish right from wrong, able to understand and participate in board proceedings, able to understand and adhere to the right, and to meet retention standards.

6.  On 19 November 1976, he received NJP under the provisions of Article 15, UCMJ, for failing to obey a lawful regulation by operating a privately owned motor vehicle without a U.S. Army Europe Driver's License.

7.  The complete facts and circumstances leading to his discharge are not contained in the available records.  However, his record contains:

	a.  Orders 175-78, issued by the U.S. Army Regional Personnel Center, Giessen, Germany, dated 22 December 1976, assigning the applicant to the U.S. Army Transfer Point, Fort Dix, NJ with a reporting date of 29 December 1976 for the purpose of separation processing.  The orders show the authority for his separation as Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (for the good of the service - in lieu of court-martial).  It further shows the service member will be issued an undesirable Discharge Certificate (DD Form 258A).

	b.  Orders 182-186, issued by Headquarters, U.S. Army Training Center, Fort Dix, dated 29 December 1976, discharged the applicant from the RA, effective
29 December 1976.

	c.  a properly-constituted DD Form 214 for the period ending 29 December 1976, that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, and that his service was characterized as under conditions other than honorable with issuance of a DD Form 258A.


8.  On 25 October 2010, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, on 19 November 2010, the applicant was notified by letter that his application was received by the ADRB after its 15-year statute of limitations; therefore, he was advised to apply to this Board to appeal his discharge.  As such, he submitted an application to this Board, dated 26 November 2010, that was received on 2 December 2010.

9.  The applicant submitted a self-authored statement wherein he states he and his then wife were arrested on Memorial Day in 1976 for possession of marijuana in the hashish form.  He was stationed in Germany at the time and was 20 years old.  He was advised by an Army attorney to accept an undesirable discharge rather than elect to go through a court-martial.  He states the attorney had a chart on the wall in his office showing that even with an undesirable discharge he would be eligible for limited G.I. Bill benefits.  That is why he elected to accept an undesirable discharge.

10.  When he arrived at Fort Dix, he was advised that his discharge had been "coded," and that the coding read "under other than honorable conditions."  Since he had already signed for the discharge, there was no appeal of this decision.  He later discovered that due to his discharge he was not eligible for unemployment, G.I. Bill, or Department of Veterans Affairs benefits.

11.  He states he is a widower who raised three sons on his own and he has been working toward a college degree.  He also states he has since matured and wants his discharge upgraded to reflect his "current behavior and not the behavior of an obvious immature young adult."

12.  The letters of support he provides express support of his request for upgrade of his discharge and indicates he has worked diligently to overcome difficult circumstances.  Three of the four letters are unsigned.

13.  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 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.  

	b.  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.

	c.  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 evidence of record does not support the applicant's request for upgrade of his undesirable discharge.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  He was 19 years of age when he enlisted.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.  While his efforts to overcome difficult circumstances in his life after his military service are commendable, those efforts alone do not provide a sufficient basis for upgrading his discharge.

4.  His record of service includes two instances of NJP and he admits he had committed an offense punishable under the UCMJ with a punitive discharge.  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 an honorable or a general 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)                                         AR20100029033



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ABCMR Record of Proceedings (cont)                                         AR20100029033



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