IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120005939 


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.

2.  The applicant states:

* He was a career Soldier; he never smoked marijuana on or off base; he took the blame for something he did not do
* He was just caught up in the same house or apartment where the drug had been sold by another Soldier
* He previously received an honorable discharge and had served in Vietnam
* Although he was never wounded, he suffers from post-traumatic stress disorder; he needs medical help
* He admits that he made mistakes but he was a good Soldier overall
* He was 20 years old at the time with little education or role models to guide him in the right path
* Someone else sold the drugs but he took the blame to protect his sister; he is sorry but he cannot change the past

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty) for the periods ending 16 October 1973 and 10 March 1977
* Statement from his sister
* Character reference letter
* Statement from his former spouse
* Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)

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's records show he was born on 14 September 1952 and he enlisted in the Regular Army at 18 years of age on 15 October 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 94B (Cook). 

3.  On 22 February 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 12 to 21 February 1971. 

4.  On 27 August 1971, he was convicted by a summary court-martial of one specification of being AWOL from 24 July to 25 August 1971.  The Court sentenced him to a forfeiture of pay.  The convening authority approved the sentence.

5.  He served in Vietnam from 31 August 1971 to 14 March 1972.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.

6.  He was honorably discharged from active duty on 16 October 1973 for the purpose of immediate reenlistment.  He completed 2 years, 10 months, and 21 days of active service and he had 41 days of lost time.

7.  On 17 October 1973, he executed a 3-year reenlistment in the Regular Army.  He was 21 years of age at the time.

8.  He served in Alaska from 3 June 1974 to on or about 9 March 1977.  He was assigned to the 1st Battalion, 43rd Air Defense Artillery. 

9.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged in the rank/grade of private/E-1 on 10 March 1977 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service.  This form also shows he completed 3 years, 4 month, and 24 days of active service during this period and he had 2 years, 10 months, and 21 days of prior active service.  

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

11.  He provides:

	a.  A letter, dated 24 February 2012, from his sister who states that her brother, the applicant, lived in an apartment building that also housed her boyfriend at the time.  Her boyfriend would have marijuana from time to time.  Her brother did not sell drugs.  Her boyfriend sold the drugs but her brother, the applicant, took the blame.

	b.  A statement, dated 7 February 2012, from his former spouse wherein she states that he took the blame for someone else's mistake.  He felt at the time this was the only thing he could do to protect his sister.

	c.  A character reference statement, dated 15 February 2012, from a friend who describes the applicant as a friendly individual.

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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 10 March 1977 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service. 

2.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no evidence that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during his last enlistment.

3.  With respect to his arguments:

	a.  There is no evidence in the available record that shows he took the blame for someone else's fault.  He did not provide any independent and verifiable evidence to corroborate his contentions.  In any case, he could have elected trial by a court-martial if he felt he was innocent of the charge(s). 

	b.  He was 18 years of age when he enlisted, 21 years of age when he reenlisted, and over 21 years of age at the time of his offense.  There is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _______   ___
               CHAIRPxERSON
      
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)                                         AR20120005939





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ABCMR Record of Proceedings (cont)                                         AR20120005939



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