BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110018587 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, he has a previous honorable discharge.  Since he has been out of the Army for so long he thinks his second discharge should be the same by now.

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 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 30 May 1975.  His record shows he completed training and he was awarded military occupational specialty 16C (Hercules Fire Control Crewman).  On 9 March 1978, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted for a period of 6 years.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing two plastic vials of marijuana seeds on 1 December 1975.

4.  The applicant’s record contains DA Form 2496 (Disposition Form), dated
2 May 1977, that shows on 27 April 1977 he was arrested by the Dade County Florida Police for possession of over 5 grams of marijuana.

5.  On 18 August 1978, the applicant accepted NJP under Article 15, UCMJ, for failing to go to at the time prescribed to his appointed place of duty on 7, 10, 11, and 13 August 1978.

6.  His record contains a military police investigation report, dated 8 November 1978, that shows the applicant was apprehended on 3 November 1978 by military authorities for attempting to transport marijuana on a medical evacuation flight.

7.  On 8 December 1978, court-martial charges were preferred against the applicant for wrongfully possessing approximately 15 grams, more or less, of marihuana.  On 3 January 1979, the convening authority referred the charge for trial by a summary court-martial.

8.  On 20 December 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he 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.  He elected not to submit a statement in his own behalf.

10.  On 17 January 1979, the separation authority approved the applicant’s request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 19 January 1979, the applicant was discharged accordingly.  He completed 3 years, 7 months, and 20 days of total active service with no lost time.

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

13.  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.

14.  Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered and it was determined to be without merit.

2.  The applicant's record reveals multiple violations and punishment under the UCMJ.  His record further shows he was charged with wrongfully possessing marijuana, the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

3.  Evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

4.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either an honorable or a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110018587



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ABCMR Record of Proceedings (cont)                                         AR20110018587



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