BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019499 


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 reconsideration of his request to upgrade his undesirable discharge to a general discharge.

2.  The applicant states that his discharge was based on two minor offenses for which he received nonjudicial punishment and the discharge he received for those minor offenses does not reflect the character of the matured individual and creates a bad impression to society for life.

3.  The applicant provides a copy of his previous Board proceedings, copies of documents from his records, and the enclosures submitted with his original application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100029033, on 9 June 2011.

2.  The applicant enlisted in the Regular Army with a moral waiver at the age of 19 in Amarillo, Texas on 10 February 1975 for a period of 3 years and training as an automotive repairman.

3.  He completed his basic training at Fort Polk, Louisiana and was transferred to Aberdeen Proving Ground, Maryland to undergo his advanced individual training (AIT).

4.  On 14 August 1975 nonjudicial punishment (NJP) was imposed against him for the wrongful possession of marijuana.

5.  He completed his AIT and was transferred to Germany on 12 September 1975 for assignment to a maintenance company.  

6.  On 27 October 1976 the applicant was referred to the dispensary for suspicion of drug abuse (hashish).  The examination was unconfirmed and he was returned to duty.

7.  On 29 November 1976 NJP was imposed against the applicant for operating a privately owned vehicle without a U.S. Army Europe driver’s license.

8.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Albuquerque, New Mexico in 1977.  However, the available records do contain a duly-constituted DD Form 214 which shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial on 29 December 1976.  He had served 1 year, 10 months, and 20 days of total active service.  

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, voluntarily submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect information that is in effect at the time of separation.  Information or events that occur subsequent to the date of the period covered by the DD Form 214 are not authorized for retroactive entry on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he was unjustly discharged for two minor offenses has been noted and found to lack merit.  In order for the applicant to have been discharged under Army Regulation 635-200, chapter10, charges had to have been preferred against him for an offense or offenses for which the authorized punishment includes a punitive discharge.  Unfortunately, the facts and circumstances surrounding his discharge are not present in the available records for the Board to review the charges against him.  However, it is not at all likely that he was discharged for the two offenses for which NJP was imposed against him. 

2.  Therefore, in the absence of evidence to the contrary, it must be presumed that 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 courtmartial, was administratively correct and in conformance with applicable regulations.

3.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate under the circumstances.

4.  The applicant was discharged under Chapter 10, Army Regulation 635-200, which required such a request to be voluntary and that the individual must admit 
guilt to the charges against them or to a lesser included offense that warranted a bad conduct or dishonorable discharge.  This in itself verifies that the charges against him were valid and indicates that he desired to avoid having a felony  conviction on his record.  In any event, his service does not rise to the level of even a general discharge.

5.  Accordingly, it appears that he received the discharge he requested and there appears to be no basis to grant his request for reconsideration of his request for an upgrade of his 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100029033, dated 9 June 2011.




      _______ _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)                                         AR20110019499





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ABCMR Record of Proceedings (cont)                                         AR20110019499



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