IN THE CASE OF:
BOARD DATE: 24 January 2012
DOCKET NUMBER: AR20110015366
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
G
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 from under other than honorable conditions to general under honorable conditions.
2. The applicant states he was railroaded by his company commander.
3. The applicant provides no additional evidence.
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 applicants 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 applicants 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 3 August 1970. He held military occupational specialty 91A (Medical Corpsman). The highest rank/grade he attained was private first class/E-3.
3. After completing basic combat and advanced individual training, he was assigned to Fort Sam Houston, TX, with Company A, 1st Battalion, Medical Field Service School, from 2 July 1971 to 19 January 1972.
4. His records show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following eight occasions:
* on 11 January 1971, for leaving his unit without authority
* on 18 January 1971, for failing to report for duty
* on 11 May 1971, for sleeping on duty
* on 17 May 1971, for violating a punishment restricting him to a specific area by leaving that area
* on 21 May 1971, for sleeping on duty
* on 25 August 1970, for failing to go to his appointed place of duty
* on 24 September 1971, for leaving his appointed place of duty
* on 8 November 1971, for failing to go to his appointed place of duty at the proper time
5. His records contain a certificate of medical evaluation, dated 11 November 1971, showing he was referred by his unit for a psychiatric evaluation prior to being separated.
6. His records show he was the subject of a Criminal Investigation Command (CID) investigation. A CID agent interviewed him on 2 December 1971 and collected his statement on a DA Form 2820 (Statement by Accused or Suspect Person). His statement shows he admitted to buying marijuana and distributing it for profit.
7. On 7 December 1971, his commanding officer was contacted by CID and informed that the applicant was being charged with the sale and distribution of marijuana on 20 October 1971 when he sold 9.86 grams of a substance suspected to be marijuana to an undercover CID agent. The substance was sent to a laboratory where it was tested and shown to be marijuana.
8. On 8 December 1971, his commander recommended his trial by a special court-martial and receipt of a bad conduct discharge. The charge sheet shows:
* one specification of selling marijuana
* one specification of possessing 9.82 grams of marijuana
9. A letter, dated 14 December 1971, shows he was placed in pre-trial confinement on 6 December 1971.
10. On 4 January 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).
11. On 14 January 1972, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade prior to separation. Accordingly, he was discharged on 19 January 1972.
12. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 19 January 1972 in the rank/grade of private/E-1 with a character of service of under other than honorable conditions. This form further confirms he completed 1 year, 5 months, and 14 days of creditable active service with 3 days of lost time.
13. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
14. 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. 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.
15. Army Regulation 635-200, paragraph 3-7b, states 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. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that having been advised by legal counsel, he 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. Further, the applicant's discharge accurately reflects his overall record of service.
2. His record shows he received NJP under the provisions of Article 15 of the UCMJ on eight occasions and was charged with sale and possession of marijuana. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to 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) AR20110015366
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110015366
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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