IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120009801 


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 an honorable discharge.

2.  The applicant states he met a friend at Fort Polk, Louisiana who had a bag of parsley in his car.  The applicant's friend told him that he had been selling the parsley to the trainees as marijuana.  A couple of days later, the applicant was seen on the car and he was picked up and questioned as if he had been selling the parsley.  After speaking with a military lawyer, the applicant accepted an under other than honorable conditions discharge because he didn’t do anything to warrant being locked up.       

3.  The applicant provides a self-authored statement.

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 17 February 1952, and he was inducted into the Army of the United States (AUS) at 18 years, 1 month, and     24 days of age on 9 April 1970, and he held military occupational specialty 94B (Cook).

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 6 March 1972, for failure to repair
* 3 April 1972, for breaking restriction
* 8 May 1972, for failure to repair
* 12 July 1972, for failure to repair
* 19 July 1972, for failure to repair
* 26 July 1972, for breaking restriction
* 27 November 1972, for failure to repair

4.  On 10 September 1973, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failure to repair.  The punishment imposed was forfeiture of $82.00 per month for one month.  He was to be restricted to the company area for 14 days and extra duty for a period of 14 days.  The forfeiture of $82.00 was suspended for 90 days.

5.  On 18 September 1973, the applicant violated Article 86, UCMJ, for failure to repair which caused his suspension to be terminated.

6.  On 18 December 1973, charges were preferred against the applicant for:

* being AWOL for the period 8 through 11 December 1973
* failing to go to his appointed place of duty on 17 December 1973
* attempting to sell a controlled substance (marijuana)  on 22 November 1973

7.  On 19 December 1973, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other honorable conditions, and the procedures and rights available to him.  The applicant further stated that he had served for nearly 4 years, but was finding it increasingly difficult to get along in the Army.  His last Article 15 had further compounded his problems from a financial standpoint, and he felt he would have to get out of the Army in order to properly care for his family.

8.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was advised of the implications attached to it and that if his request for discharge was accepted, he may be discharged under other than honorable conditions, and furnished an Undesirable Discharge Certificate.  He understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he may expect to encounter substantial prejudices in civilian life by reason of an undesirable discharge.

9.  On 2 January 1974, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 8 January 1974, the applicant was accordingly discharged.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 3 years and 9 months of creditable active military service.

11.  On 20 March 1984, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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, an undesirable discharge was normally considered appropriate at the time the applicant was discharged.

13.  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

14.  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 it was determined that there is insufficient evidence to support this request.

2.  The applicant's records show he was charged for the commission of offenses 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 a 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.  Further, his discharge accurately reflects his overall record of service.

3.  The applicant was over 18 years of age at the time of induction into the AUS and over 20 years of age at the time he committed the majority of his offenses.  There is no evidence his misconduct was a result of his age or that he was any less mature than other Soldiers who successfully completed their military service.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders 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.




      _______ _   _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)                                         AR20120009801



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ABCMR Record of Proceedings (cont)                                         AR20120009801



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