BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013432 


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 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant states the Military Police (MP) in Germany illegally stopped and searched his car but he takes responsibility because it was his car in which contraband was found.  He claims a couple of minutes before he was stopped he noticed a passenger put something in his glove compartment and when he asked what it was the passenger told him he was mistaken.  Before he could pull over and find out what was going on, he was stopped by the MPs told him he was stopped because the vehicle didn’t look right.  He claims his commander would not listen to him when he tried to explain what happened and gave him two options, prison or discharge, which were both unfair.  He claims he has led an exemplary life since his discharge.  

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Report of Separation from Active Duty)
* Criminal History Check
* Military Proceeding Document Extracts
* College Professor Letter
* Pastor Letter
* Character Reference Letter 



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 record shows he enlisted in the Regular Army on 
28 September 1972, and was trained in and awarded military occupational specialty (MOS) 52B (Power Generator Operator/Mechanic).  

3.  The applicant’s record shows he was advanced to specialist four/E-4
(SP4/E-4) on 18 June 1974, and that this is the highest rank he attained while serving on active duty.  It also shows he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 August 1973, for being absent from his unit without authority; and 24 December 1974, for absenting himself from his place of duty without authority.  

5.  On 9 January 1975, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for 4 specifications of violating Article 92 of the UCMJ by violating lawful general regulations on 6 January 1975 and two specifications of violating Article 134 by wrongfully possessing heroin and marijuana on 6 January 1975.  



6.  On 27 February 1975, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of a UD; and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-marital.  

7.  In his request for discharge, the applicant acknowledged that he understood if his request for discharge were accepted he could receive a UD discharge and as a result could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA); and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit statements in his own behalf.  

8.  On 17 March 1975, the separation authority approved the applicant’s request and directed he receive a UD.  On 24 March 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 
2 years, 5 months, and 27 days of creditable active service. 

9.  On 13 October 1981, after carefully considering the applicant’s entire military record and the issues he presented, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable and it voted unanimously to deny the applicant’s request for an upgrade of his discharge and/or to change the narrative reason for separation.  

10.  The applicant provides an investigation officer report, dated 24 January 1975, in which the IO found no evidence supporting specification 3 and 5 of Charge I and specification 2 of Charge II.  However, he did find evidence indicating the applicant should be charged with possession of drug-related paraphernalia, possession of hashish residue, possession of 1 foil packet containing a white powdery substance, amphetamines. 

11.  The applicant also provides a police records check of arrests and convictions in the City of Dearborn Heights, MI that indicates no criminal record in that city.  In addition, he provides five character references from his Pastor, a College Professor and three friends which all attest to his good character as a citizen and family man.  



12.  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 discharge or GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged a UD was 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 request that his UD be upgraded to a GD and the supporting documents he submitted have been carefully considered.  However, there is insufficient evidence to support his request.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  



3.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UD and that he understood the possible effects of receiving this type of discharge and after electing not to submit statements in his own behalf, he requested administrative discharge to avoid a possible punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance.  

4.  Although the applicant’s post-service conduct as attested to in the supporting character references is noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.  His record documents no acts of significant achievement or valor; however, it does reveal an extensive disciplinary history including his acceptance of NJP on two separate occasions prior to the incident that resulted in the court-martial charges and his discharge.  As a result, his undistinguished record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

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)                                         AR20110013432



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ABCMR Record of Proceedings (cont)                                         AR20110013432



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