BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120003019 


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 an upgrade of his under other than honorable conditions discharge to at least a general discharge.

2.  The applicant states, in effect, he was forced to accept a discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) rather than face a court-martial for a charge of possession of marijuana.  He contends the charges which led to his discharge action were inaccurate.  He completed his rehabilitation and was out processing prior to the expiration of his normal term of service when the transition unit conducted a "health and welfare" inspection with contraband detecting dogs.  During this inspection, marijuana seeds were found in his wall locker and he was immediately arrested and charged.  He contends the drugs were not his and he was never tested for drugs.  He attests that he was advised by the Judge Advocate General staff that in order to avoid a court-martial with a bad conduct discharge he could elect to accept a separation action under chapter 10.  He concludes that he fulfilled his military obligation honorably, he never possessed drugs while on active duty, he was wrongfully charged, found guilty, and unfairly discharged.  His life is severely impacted by not being eligible to receive at least medical insurance through the Department of Veterans Affairs.

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 2 November 1979.  He completed initial entry training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  However, at the time of discharge he held the rank/grade of private/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for the following offenses:

* multiple instances of failing to go to his appointed place of duty at the time prescribed
* possessing marijuana
* possessing a switchblade knife
* operating a privately owned vehicle (POV) without a valid operator's license
* operating an unregistered POV
* operating a POV that was not covered by liability insurance
* disobeying a lawful command from a commissioned officer
* disobeying a lawful command from a noncommissioned officer
* being drunk and disorderly
* resisting arrest by an armed forces policeman

4.  On 26 April 1982, a locally imposed bar to reenlistment was approved against the applicant for the aforementioned offenses.



5.  Summary Court-Martial Order Number 20, issued by Headquarters, 1st Battalion, 52d Infantry Regiment, shows the applicant was found guilty of failing to repair on or about 2 September 1982 and for disobeying a lawful order on or about 28 August 1982.  As a result, he was confined to hard labor for 30 days, reduced to the rank/grade of private/E-1, and forfeited pay for a period of
1 month.

6.  The applicant's record is void of a DD Form 458 (Charge Sheet) showing the subsequent court-martial charges which were preferred against him for unlawful drug possession.

7.  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.

8.  On 29 November 1982, following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He elected not to submit a statement in his own behalf.

9.  Based upon his numerous offenses and failure to respond to rehabilitative efforts, his company and battalion commanders recommended approval of his request for discharge for the good of the service with the issuance of a discharge under other than honorable conditions.

10.  On 2 December 1982, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of a discharge under other than honorable conditions.

11.  On 3 December 1982, the applicant was discharged accordingly.
12.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  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.

14.  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.

15.  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 determined to be without merit.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The available evidence shows the applicant 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.

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)                                         AR20120003019



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ABCMR Record of Proceedings (cont)                                         AR20120003019



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