IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021314 


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 would not try to justify his actions and he knows he made some bad decisions attributed to his youth, vulnerable age, and overall drug culture
* prior to this incident, his service was honorable with no bad conduct or punitive actions against him or his character; he was awarded multiple awards and decorations that he was not given
* he was under extreme pressure from sources directly connected to the drug culture even before his wife joined him in Germany
* he was scared for his family and himself by the situations and circumstances he created
* he is older and wiser now; he has been happily married and he has been clean and sober for over 21 years; it has been 34 years since his discharge

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the periods ending on 29 July 1975 and 6 August 1979
* Letter, dated 7 April 1982, regarding his reenlistment code
* Sister’s letter of support, dated 4 March 1982
* Undated self-authored affidavit
* Undated employer letter
* Los Angeles Trade - Technical College Registration Card
* Two Associate in Arts diplomas
* 1973 and 1977 enlistment contracts
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2-1 (Personnel Qualification Record)

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 XX March 1955 and he enlisted in the Regular Army (RA) on 30 July 1973 for a period of 2 years, at 18 years of age.  He held military occupational specialty (MOS) 76S (Automotive Repair Parts Specialist).  

3.  He served in Korea from on or about 19 December 1973 to on or about 13 December 1974.  He was honorably released from active duty on 29 July 1975.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Armed Forces Expeditionary Medal (Korea)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Army Good Conduct Medal (1st Award)

4.  He again enlisted in the RA for a period of 4 years on 20 July 1977, in the rank/grade of specialist four (SP4)/E-4.  He was 22 years of age on that date.  He held MOS 76D (Materiel Supplyman) and he served in Germany from on or about 10 August 1977 to on or about 1 August 1979.  

5.  On 22 June 1979, court-martial charges were preferred against him for one or more specifications of the sale and possession of heroin.  

6.  On 22 June 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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.

7.  In his request for discharge, he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also:

* indicated he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration
* acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  On 25 June 1979, his immediate commander recommended disapproval of the discharge action and opined that the crimes of sale of heroin and possession of marijuana were serious crimes and allowing the applicant to be simply discharged would have had an adverse impact on the order and discipline of the unit.  

9.  On 26 June 1979, the applicant's intermediate commander also recommended disapproval of the discharge action and strongly opposed any recourse other than the court-martial.  He opined that to simply discharge the applicant would be a travesty of justice and would have an immediate impact on the morale of the battalion.  

10.  On 2 July 1979, the senior commander - a general officer - reviewed the charges and opined that discharging the applicant would be in the best interest of the Army.  


11.  On 5 July 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial.  He directed the applicant be reduced to the lowest enlisted grade and his service be characterized under other than honorable conditions.  On 6 August 1979, the applicant was accordingly discharged.

12.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 in the rank of private with a character of service of under other than honorable conditions.  This form further shows he completed 2 years and 17 days of creditable active service during this period and he was credited with 2 years of prior active service.  

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

14.  He submitted various documents, some undated and others dated in the early 1980s, from himself, family members, and others.  These documents speak of his character and the circumstances (marriage, drugs, and emotional stress) that led to his discharge.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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.  Furthermore, his discharge accurately reflects his overall record of service.

2.  With respect to his arguments:

	a.  The applicant was 22 years of age on the date of his enlistment in the RA on 20 July 1977.  However, there is no evidence his serious misconduct was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

	b.  Not only had the applicant previously served in the RA, he held the rank/grade of SP4/E-4 and thus was presumably more mature and experienced than some of the Soldiers in his unit.  He also had the experience of having previously served overseas.  

	c.  The Army does not have nor did it ever have a policy wherein a characterization of service is upgraded due to passage of time. 

	d.  When court-martial charges were preferred against him for this drug offense, his immediate and intermediate commanders were strongly opposed to him being simply discharged without being held accountable for his actions.  Given the seriousness of the drug charges, both commanders recommended a court-martial, which could have led to a bad conduct or a dishonorable discharge. Likewise, if the applicant felt he had extenuating circumstances, he could have elected to face the court-martial if he felt he was innocent.  Instead, he submitted a request for voluntary discharge. 

3.  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.  In view of the foregoing, 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)                                         AR20120021314



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ABCMR Record of Proceedings (cont)                                         AR20120021314



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