IN THE CASE OF:	 

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120002387


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 previous request for an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

	a.  When he was separated from the military, he was forced to resign or go to jail.  He was treated unfairly, like he was a bad person, even though he had not gotten into significant trouble prior to the date of his infractions.  He served honorably before his discharge, completing basic training and advanced individual training, and served 2 years, 4 months, and 25 days of total active service.  At no point was he ever incarcerated – that speaks to his character.  He was personally aware of other military personnel who got into trouble and were given the second chance he never received.

	b.  Although the Army Board for Correction of Military Records (ABCMR) had evidence he provided, specifically the character letter provided by a retired sergeant major (SGM), the Board did not assign it adequate weight.  The Board considered the evidence it had; however, it never considered the facts and circumstances of his discharge proceedings.

	c.  The Board indicated he did not file within an appropriate timeframe following his discharge, which is not true as he filed a request with the Army Discharge Review Board (ADRB) within the 3 years following his discharge.

	d.  Earlier in his period of military service he received 2 instances of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  While both resulted from mistakes on his part, neither warranted his discharge.  He was not discharged for a pattern of misconduct.  Both instances of NJP were isolated instances for which he received punishment – they were not considered by the Army in his discharge proceedings so the ABCMR should not consider them now.

	e.  He was stopped by the police for speeding and was found to be in possession of marijuana – these factors resulted in his apprehension and discharge processing.  He was presented with only 2 options – accept the discharge or go to jail.

	f.  Although he accepted discharge in lieu of trial by court-martial, the very fact he faced charges was atypical.  His punishment was egregious and too severe – had it happened today he would have been offered treatment, counseling, or a minor punishment.

	g.  He could have been given an honorable or a general discharge.  He was an immature 21-22 year old at the time, but he has grown into a better man today.  Since his discharge, he has been an upright member of his community and a citizen.  He is now a self-employed small business owner and a member of the Ohio Masonic Lodge.  He made mistakes in his youth that he truly regrets, and he has paid the price for those mistakes.  His discharge is a life punishment for him – he was never given a second chance as a first time offender.  He asks for that second chance now.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a third-party character reference letter from a retired SGM
* ABCMR Docket Number AR20110003807, dated 1 September 2011

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 ABCMR in Docket Number AR20110003807, dated 1 September 2011.  

2.  The applicant provides a statement of his case he believes constitutes a new argument that was not previously considered by the Board.  Therefore, this new argument warrants consideration.

3.  On 5 January 1979, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty (MOS) 63B (Power Generation and Wheeled Vehicle Mechanic).

4.  On 27 May 1979, upon the completion of his initial entry training, he was assigned to Service Battery, 2nd Battalion, 36th Field Artillery Regiment, Fort Sill, OK.

5.  Records show he received NJP, under the provisions of Article 15 of the UCMJ, on two separate occasions on:

* 6 November 1979, for disrespecting a senior noncommissioned officer (NCO) on 28 October 1979
* 27 May 1980, for willfully disobeying a lawful order on 22 May 1980

6.  On 26 June 1980, the applicant's immediate commander initiated a bar to reenlistment against him.  On 18 July 1980, the approval authority approved his bar to reenlistment.

7.  On an unknown date, the applicant was arrested for speeding and driving under the influence of alcohol.  During a search of his vehicle, he was found to be in possession of approximately 80 grams of marijuana.  He then attempted to bribe the arresting officer.  Court-martial charges were preferred against him.

8.  His discharge packet is not available for review; however, his record contains a DD Form 214 that shows he was discharged on 29 May 1981 in the rank/grade of private (PV1)/E-1, 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 with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time shows he completed 2 years, 4 months, and 25 days of net active service during this period of enlistment.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

9.  On 11 August 1982, the ADRB denied his request for a discharge upgrade.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	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 for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge; however, his record contains a DD Form 214 that shows he was discharged on 29 May 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  It appears he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  The applicant contends he never got into significant trouble prior to the infractions that resulted in his discharge processing, and he characterizes his service as "honorable."  The evidence of record shows he twice received NJP for disrespecting a senior NCO and willfully disobeying a lawful order.  This conduct calls into question his military bearing and level of self-discipline; further, such conduct is not "honorable," rather, it illustrates his lack of professional ethics as a Soldier.  

4.  The infractions he committed were not minor.  He was stopped by police officers for speeding and driving under the influence, after which time he was found to be in possession of 80 grams of marijuana – a sizable amount of an illegal substance.  Lastly, he attempted to bribe a police officer in an attempt to avoid arrest.  These actions warranted the court-martial charges he received. 

5.  His post-service accomplishments are noted; however, they do not mitigate the seriousness of the misconduct that resulted in his discharge.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20110003807, dated 1 September 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)                                         AR20100015378



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ABCMR Record of Proceedings (cont)                                         AR20120002387



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