IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110000450 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in over 28 months of service with no other adverse action.  He further states he was turned in because the Soldier he was helping failed to tell the Criminal Investigation Division that the drugs he was caught with belonged to the Soldier. 

3.  The applicant provides a medical report, two medical bills, three pages titled patient profile, and three pages titled chemotherapy drugs.

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's records show he enlisted in the Regular Army on 2 November 1976 and he held military occupational specialty 71L (Administrative Specialist).  He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar
(M-16) and the Expert Marksmanship Qualification Badge with Hand Grenade Bar.  

3.  On 22 May 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully possessing a hypodermic needle and syringe. 

4.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain a memorandum, dated 20 November 1979, wherein the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service and directed his reduction to private (PV1)/E-1 and issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The memorandum also stated the (court-martial) charge and specifications were dismissed.

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged on 3 December 1979, in accordance with Army Regulation 635-200, chapter 10, conduct triable by court-martial in the rank of PV1 with an under conditions other than honorable character of service.  He completed 3 years, 1 month, and 3 days of creditable active service. 

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

7.  Army Regulation 635-200, in effect at the time, 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.  Although an honorable or general discharge is 


authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  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 evidence of record shows the applicant received NJP for wrongfully possessing a hypodermic needle and syringe.  In addition, court-martial charges were preferred against him and he subsequently submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

2.  In the absence of evidence to the contrary, it is presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that the type of discharge directed and the reason for separation were appropriate.  Therefore, there is insufficient evidence to support an upgrade of his service to general or honorable.

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)                                         AR20110000450





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ABCMR Record of Proceedings (cont)                                         AR20110000450



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