IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110001306 


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 an honorable discharge.

2.  The applicant states that prior to the expiration of his term of service he made two poor choices.  He states he used marijuana and attempted to carry marijuana cigarettes back to Germany from the United States, but he was detained by the Military Police and returned to the control of his unit.  He states he was young and immature when he committed these offenses.  

3.  The applicant states he is older and more mature.  He states he pursued higher education in the field of sociology and then advanced studies in the field of psychology.  He is now a licensed clinical social worker working for the Department of Defense (DoD) as a psychotherapist and treats active duty Soldiers who have returned from deployment.

4.  He states in 1984, he applied to the Army Discharge Review Board for a discharge upgrade.  He states his father assured him the "situation" was "taken care of" and "to use my initial DD 214."  Now, after seeking employment with DoD he realizes it was not taken care of and he would like his discharge upgraded.

5.  The applicant provides:

* a Certificate of Achievement, dated 12 November 1982
* a community college certificate of completion for a law enforcement program, dated 25 June 1993
* a State of Florida, Correctional Probation Officer Basic Recruit Training certificate, dated 13 November 1992
* a National Honor Society in Psychology Lifetime Membership Certificate, dated 3 May 2002
* a certificate showing his board certification as a Clinical Social Worker
* his official college transcripts
* multiple letters of recommendation

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 complete military personnel records are not available for the Board's review; however, there were sufficient documents available in a temporary record to conduct a fair and impartial review of this case.

3.  The applicant enlisted in the Regular Army on 16 February 1981.  He completed his initial entry training and he was awarded military occupational specialty 95B (Military Police).

4.  The applicant's service record is void of documents showing he received nonjudicial punishment and there are no records of a court-martial conviction.

5.  On 3 March 1983, court-martial charges were preferred against the applicant for breaking arrest and possession of 10 grams, more or less, of marijuana found on his person on 12 February 1983 while going through customs at the Frankfurt International Airport, Germany.

6.  On 6 March 1983, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - 


Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated in writing that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making his request for discharge in lieu of court-martial.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable 

7.  The applicant's immediate and intermediate commanders recommended approval of his voluntary request for discharge with an under other than honorable conditions discharge.

8.  On 9 March 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed the issuance of an under other than honorable conditions discharge and reduction to the rank/grade of private (PV1)/E-1.

9.  Accordingly, on 28 March 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, and issued a DD Form 214 that confirms his characterization of service of under other than honorable conditions.  

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

11.  As supporting evidence, the applicant provided his academic transcripts from the Central University of Central Florida that shows he received a master's degree in Social Work in 2005.  He also provided a certificate showing he is a member of the National Honor Society in Psychology.  He holds a license in the State of Alaska as a clinical social worker and is employed in this field.  He provided letters of recommendation that state he is reliable, dependable and adapts well to his environment providing sound clinical judgment as evidenced through documentation within the computerized medical records.  

12.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military 


Justice (UCMJ).  The maximum punishment for possession of marijuana and breaking arrest is a punitive discharge (dishonorable discharge or bad conduct discharge), maximum confinement of 2 years, reduction to the rank/grade of PV1/E-1, and a total forfeiture of all pay and allowances.

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

	c.  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.

	d.  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 due to the passage of time and his post-service accomplishments, stating he was young and immature at the time of the incidents that led to his discharge.

2.  The applicant was charged under the UCMJ for breaking arrest and possession of marijuana.  The applicant's voluntary request for separation 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.


3.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The applicant's post-service accomplishments, while noteworthy, are insufficient to warrant upgrading a properly issued discharge.  

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  There is also no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  In view of the foregoing, there is an insufficient basis in which to upgrade the applicant's discharge to either 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)                                         AR20110001306



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ABCMR Record of Proceedings (cont)                                         AR20110001306



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