IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110008307 


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 discharge be upgraded to honorable (HD).

2.  The applicant states:

* he had an off-post drug charge, but was found not guilty
* he left the Army because of shabby treatment
* he is homeless and needs Department of Veterans Affairs (DVA) help

3.  The applicant provides no additional documentation with his application.

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.  With service in the U.S. Army Reserve (USAR), the applicant was involuntarily ordered to active duty for 20 months for unsatisfactory participation.  He entered on active duty on 10 November 1978.

3.  The applicant was transferred to Germany for duty as an infantryman with Company C, 2nd Battalion, 87th Infantry, 8th Infantry Division.  On 26 July 1979, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, guard duty, on 29 June 1979.

4.  On 22 June 1979, the applicant and a fellow Soldier were arrested by German police at the Frankfurt Railway Station, Frankfurt, Germany, for possession of heroin.  They were detained and released to U.S. military authorities.  

5.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record does contain a 9 November 1979 request for discharge for the good of the service and a properly-constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.

6.  On 6 February 1980, he was discharged for conduct triable by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He was issued an under other than honorable conditions (UOTHC) discharge.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 8 March 1985, denied his request.

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

9.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a general discharge (GD) 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade from UOTHC to HD.

2.  The applicant was a persistent no-show as a Reservist and was ordered to involuntary active duty for 20 months.  He received an NJP for failing to report for guard duty.  He was arrested by German authorities for possession of heroin.

3.  It appears the applicant was turned over to military authorities for prosecution and that court-martial charges were preferred against him.  Although the charge sheet and discharge packet are unavailable, the applicant clearly requested discharge for the good of the service to avoid trial by court-martial.  His 
chapter 10, Army Regulation 635-200 request was accepted and he was discharged UOTHC on 6 February 1980.

4.  In the absence of evidence to the contrary it is presumed 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 with no indication that the request was made under coercion or duress.

5.  The applicant's statement he was found not guilty is incorrect.  He was never tried because he avoided trial by requesting a chapter 10 administrative discharge.
6.  The applicant has provided no justification for clemency in this case.  His service did not rise to the level of an under honorable conditions discharge (HD or GD).

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)                                         AR20110008307





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ABCMR Record of Proceedings (cont)                                         AR20110008307



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