DOCKET NUMBER:  AR20120009155 


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 the undesirable discharge he received was not given at his court-martial.  He enlisted in the Army and served on active duty for 20 months prior to 1980.  Additionally, his prostate-specific antigen (PSA) levels are at 41.00, this means he probably has prostate cancer.  He was hoping to be treated at a Department of Veterans Affairs (VA) hospital; however, he was denied veterans benefits due to his undesirable discharge.

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim).

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 10 September 1973 and held military occupational specialty 63B (Wheel Vehicle Mechanic).  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Fort Bragg, NC, from 6 February 1974 to 6 May 1975.

3.  On 18 March 1975, he was convicted by a special court-martial of one specification of wrongfully possessing one pound of marijuana and one specification of wrongfully transferring one pound of marijuana.  The Court sentenced him to a bad conduct discharge, confinement at hard labor for 6 months, a forfeiture $225.00 of pay per month for 6 months, and a reduction to private/E-1.

4.  On 1 May 1975, the convening authority approved the sentence but suspended the portion of the sentence pertaining to the bad conduct discharge for a period of 6 months from the date of his release from confinement, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.  

5.  His DA Form 2-1 shows he was assigned to the U.S. Army Retraining Brigade, Fort Riley, KS, on 7 May 1975.

6.  Special Court-Martial Order Number 395, issued by the U.S. Army Retraining Brigade, Fort Riley, KS, on 10 June 1975, states, effective 12 June 1975, the unexecuted portion of the approved sentence at hard labor, as promulgated in Special Court-Martial Order Number 31, not subsequently modified, was remitted.

7.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows on 12 June 1975 he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service and received an under other than honorable 
conditions discharge.  This form shows he completed 1 year and 6 months of 
creditable active military service with 93 days of lost time. 

8.  On 18 August 1976, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, determined he was properly discharged and denied his request for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, states:

	a.  Chapter 10 provided that an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, including a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred.  The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority.  An individual who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the Service.  The request for discharge for the good of the Service does not preclude or suspend disciplinary proceedings.  Whether proceedings will be held in abeyance pending final action on a request for discharge under the provisions of this chapter is a matter to be determined by the commander exercising general court-martial jurisdiction over the individual concerned.  If disciplinary proceedings are not held in abeyance, the general court-martial convening authority may nevertheless approve the member's request for discharge for the good of the Service after the member has been tried.  

	b.  Chapter 10 of this regulation further states commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	c.  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.

	d.  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 record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged for the good of the service on 12 June 1975 under the provisions of Army Regulation 635-200, chapter 10, and received an under other than honorable conditions discharge.

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 for the good of the service.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment.  Absent evidence to the contrary, regularity must be presumed in this case.

3.  His record shows he was convicted by a special court-martial of possessing and transferring one pound of marijuana.  This action tarnished his overall record of service; therefore, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As such, he is not entitled to an honorable or a general discharge.

4.  The ABCMR does not upgrade discharges solely for the purpose of making an individual eligible for benefits.  Every case is individually decided based upon its merits.

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)                                         AR20120009155





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009155



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1