IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120005046 


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 (UOTHC) discharge.

2.  The applicant states he was innocent of the charge of possessing marijuana and was not provided legal counsel.  He was asked to sign paperwork "for the good of the Army" and was told his UOTHC discharge would be upgraded after 10 years.  However, after he applied for healthcare benefits through the Veterans Administration (VA) in Ashville, NC he found out that his upgrade was not automatic.

3.  The applicant contends that his Junior Reserve Officers’ Training Corps (JROTC) experience was very positive and he enlisted accordingly.  He was a scared 18 year old and didn't really appreciate the ramifications [of a UOTHC discharge] later on in life.  He was a squad leader in a basic training unit due to his successful completion of a four-year Army JROTC program.  Thirteen of his fellow Soldiers were "busted" for possession of marijuana of which he was identified as being the provider.  He professed his innocence and no illegal drugs were found in his possession and his blood tests were negative.  He did not really understand his legal rights and was in "basic training mode" where any authority figure was someone to be feared.

4.  The applicant provides a letter from the National Personnel Records Center and his DD Form 214 (Report of Separation from Active Duty).



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.  On 7 April 1975, the applicant enlisted in the Regular Army at the age of 
18 years and 7 months.  He did not complete his initial training.  The highest rank/grade he attained was private (PV1)/E-1.

3.  The records show that on 19 May 1975, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for the following:

* Specification 1 - wrongful transfer of 25 grams, more or less, of marijuana
* Specification 2 - wrongful use of marijuana
* Specifications 3 and 4 - wrongful sale of one ounce, more or less, of marijuana

4.  On 27 May 1975, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for 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.  He acknowledged he had been afforded the opportunity to consult with appointed counsel, advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

5.  In his request for discharge, he indicated that 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 bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 


discharge request was approved, it could not be automatically upgraded, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  His company commander stated that at the time of his offense, the applicant was a trainee squad leader and was well aware of the consequences of selling drugs.  Further, the applicant violated a position of trust given to him by his Drill Sergeant and the commander.  Such an obvious disregard for regulations and the welfare of the men under him was inexcusable and he did not have the potential for rehabilitation.

7.  On 10 July 1975, the separation authority approved his request for discharge and directed that he be discharged UOTHC.

8.  On 15 July 1975, he was discharged accordingly.  He completed a total of 
3 months and 9 days of creditable active military service.

9.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests upgrade of his UOTHC discharge.

2.  His contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was more than 18 years of age when he enlisted 


and by his own admission was placed in a squad leader position based on his successful completion of a four-year JROTC program.  It can be presumed this leadership position required the individual to possess a higher degree of maturity than a trainee with no military experience; therefore, his contention that he was too young to understand the consequences of a UOTHC discharge is not credible.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this 
Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to his separation processing.  Based on the seriousness of his offense, his service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects his overall record of service.

5.  In view of the above, his request should be denied.

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)                                         AR20120005046





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ABCMR Record of Proceedings (cont)                                         AR20120005046



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