IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110006111


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 discharge under other than honorable conditions to an honorable or a general discharge.

2.  The applicant states:

* his discharge was unjust and due to his being ignorant
* he has not been incarcerated subsequent to his release from the Army
* he appreciates what he was taught by the Army
* he works with others very well which is what he was taught
* his record is not in error
* he has accomplished lifesaving techniques and has saved a lot of lives with his experiences

3.  The applicant provides a letter from the National Personnel Records Center dated 14 April 2011.

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 in the Army on 1 May 1975 at 23 years and 10 months of age.  He completed training as a light weapons infantryman.

3.  On 12 September 1977 nonjudicial punishment (NJP) was imposed against him for possession of heroin and marijuana.

4.  The applicant was counseled on 21 June 1978 for the following:

* refusing to get his vehicle ready to move
* being late to his duty position
* unacceptable work performance
* unpresentable personal appearance
* unsatisfactory physical fitness participation

5.  He submitted a statement to the counseling he received contending:

* the way the first lieutenant was running things in May 1978 was the cause of his attitude
* the first lieutenant harassed him to feed the guards first
* he tried to fix the brakes on his vehicle using brake fluid but the brakes needed to be adjusted
* the first lieutenant made a smart remark about taking 2 days to fix one “gig”
* the first lieutenant let everyone on the back of the truck take their time taking a shower and going to the post exchange and only gave him 15 minutes to shower and get cleaned up
* he was never given time to go to the post exchange
* when he was in an accident the first sergeant make a remark that disturbed him and the first sergeant believed it was his fault
* despite the allegations he had rarely been late for alerts
* the first lieutenant continued to harass him into breaking the maintenance bay to get his truck and “top it off”
* he had been among the first in line waiting to move out
* 
the first lieutenant’s egotistical ways caused him and others to disrespect him on numerous occasions
* the first lieutenant’s ego trip had increased after he became the executive officer and his harassment was uncalled for and out of place

6.  On 2 August 1978 the applicant was notified that charges were pending against him for possession of 40 grams of marijuana.  He acknowledged receipt of the notification.  After consulting with counsel he submitted a 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.

7.  The appropriate authority approved the request for discharge on 5 September 1978 and directed the issuance of a discharge under other than honorable conditions.  

8.  On 15 September 1978 the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 3 years, 4 months, and 15 days of total active service.

9.  His records do not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

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

   a.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  

2.  He is commended for his post-service conduct.  His contentions regarding his youth and immaturity have been considered.  However, neither are sufficient justifications for upgrading his discharge.  His records show he was 27 years old at the time of his discharge from the Army.

3.  His records show that he was provided several opportunities to serve honorably.  He had NJP imposed against him for possession of heroin and marijuana in September 1977 and he was not processed for discharge.

4.  He was counseled regarding his numerous acts of indiscipline on 21 June 1978 and was charged with his second offense of possession of marijuana on 2 August 1978.  Considering the nature of his offenses his discharge under other than honorable conditions was appropriate.

5.  In view of the forgoing, 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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20110006111



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