IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110010417 


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 that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states he has struggled for 35 years to survive and care for his family.  He states it has been a constant day-to-day battle to prove himself and his net worth.  The discharge he was given has been a hindrance to his employment as a police officer.  He states he cannot attain a full-time police position until his discharge is changed.  He also states he has made positive contributions to his community and society, but is having a hard time securing a law enforcement position even though he is certified.

3.  The applicant provides four letters of recommendation and copies of:

* a three-page letter to his Congressional representative
* his birth certificate
* his driver's license
* his social security card
* his résumé
* a letter congratulating him for completion of the Nevada Commission on Peace Officers' Standards and Training Basic Certification program
* a letter rescinding an offer of employment based on his background investigation
* his appointment and oath of office as a bailiff and deputy clerk
* his education transcripts
* a document showing the applicant underwent pre-employment drug testing
* four certificates of recognition and training completions
* his name tags and badges
* his Veterans Administration Certificate of Eligibility
* a letter to the White House
* his DD Form 214 (Report of Separation from Active Duty)
* his Army Discharge Review Board (ADRB) Case Report and Directive

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 Regular Army on 1 November 1974 for a period of 3 years and assignment to the 1st Infantry Division.  He completed one-station unit training as a light weapons infantryman at Fort Polk, Louisiana, and was transferred to Fort Riley, Kansas, on 4 April 1975.

3.  On 30 April 1976, he was reclassified to the military occupational specialty of food service specialist.

4.  On 3 May 1976, nonjudicial punishment was imposed against him for failure to go to his place of duty (Division Cook School).

5.  On 1 September 1976, charges were preferred against the applicant for the wrongful possession of 7 kilograms, more or less, of marijuana.

6.  On 22 November 1976 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

7.  The appropriate authority (a major general) approved his request for discharge on 17 December 1976 and directed his discharge under other than honorable conditions.

8.  On 13 January 1977, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  He completed 2 years, 2 months, and 13 days of active service.

9.  The applicant applied to the ADRB for an upgrade of his discharge and was granted a personal appearance before the ADRB travel panel on 15 May 1979.  He contended at that time that he was innocent of the charges against him and that he had been picked up by two other Soldiers from his battalion and given a ride back on post when the car was stopped and searched and a large plastic bag with unprocessed marijuana plants was found.  He claimed he asserted his innocence, but the military police did not want to hear his story.  His counsel advised him to apply for a chapter 10 discharge or risk going to jail.  The ADRB found there was no evidence to support his contentions.  Given the severity of the charge against him, the ADRB did not accept his contention and voted unanimously to deny his request for an upgrade of his discharge.  On 25 June 1979, the ADRB denied his request.

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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time an undesirable discharge was normally given.

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, states 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 voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of the charges against him, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of 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 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)                                         AR20110010417



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ABCMR Record of Proceedings (cont)                                         AR20110010417



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