IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030229 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was charged with selling marijuana and the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) asked him to become an informant.  He states that CID told him they would not press charges if he gave them information about the selling of marijuana and helped them in their investigation.  He states he told the CID what he knew and he was still charged with selling marijuana.

	a.  He states he felt if he chose a trial by court-martial he would be given a dishonorable discharge anyway, so he chose to forego the hearing and be released for the good of the service.  He states he has never been in trouble with the law outside the military.  He does not use or sell drugs and does not drink alcohol.  He states he has taken numerous random drug tests in his civilian work and has never failed a drug test.  He requests an upgrade of his discharge based on his acknowledgment of his mistakes, his improved lifestyle, and his eligibility for Department of Veterans Affairs health care.

	b.  He further states he was severely burned while in the military and started using marijuana after this episode to ease his pain and depression.  He requests that the Board find the Laird memorandum applies because he sold the marijuana as a favor, not to make a profit.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), recent drug test documents, line-of-duty documents related to being burned, medical examination, and discharge-related documents.

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.  His military records show he enlisted in the Regular Army on 15 June 1974.  He completed initial entry training and was awarded the military occupational specialty of infantryman.  The highest rank/grade he attained was sergeant/E-5.

3.  He provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 October 1975, showing he incurred second-degree burns on both thighs when he lit a can of Johnson's wax to melt it as part of preparation for waxing the floor and the burning wax spilled onto his thighs.

4.  On 13 June 1977, he was charged with:

	a.  wrongfully having in his possession .19 grams, more or less, of marijuana and for wrongfully transferring marijuana on 7 December 1976 and

	b.  wrongfully having in his possession and selling 94.34 grams, more or less, of marijuana on 9 December 1976.

5.  On 24 June 1977, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood if his discharge request were approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

6.  His counsel annotated on the applicant's request for discharge that he had discussed briefly the pending charge with the applicant and that he did not concur in the applicant's request for discharge.

7.  The separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

8.  On 29 August 1977, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 3 years, 2 months, and 15 days of active service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.  A discharge under other than honorable conditions is normally considered appropriate.

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 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 discharge with a characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

13.  The Laird memorandum covered discharges issued or in process by 7 July 1971 for a number of official reasons, including unfitness (or misconduct) due to "drug addiction, habituation, or the unauthorized use or possession [of drugs]," and the good of the service when drug abuse was involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged twice for wrongfully possessing and transferring/selling marijuana.  He contends that CID indicated he would not be charged if he assisted them in their investigation, but he was charged anyway.

2.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  In doing so, he admitted guilt to the charge or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted his discharge under other than honorable conditions.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.

3.  He was discharged several years after the time frame covered by the Laird memorandum.  As such, this memorandum does not apply to his discharge.

4.  While he indicates he began using marijuana due to pain from burns he incurred in the military, he provided no explanation as to how this excuses or justifies his behavior.  He also contends he assisted the CID in their investigation and that he did not sell the marijuana to make a profit.  However, he has not submitted any documentation to support these contentions.  When he had to opportunity to raise these issues at the time he requested discharge, he elected not to do so.  Acknowledgment of his mistakes, an improved lifestyle, not failing civilian drug testing, not using or selling drugs, and not drinking alcohol are all worthy behavior.  However, these are not sufficient to upgrade a properly-issued discharge.
5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100030229



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030229



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1