IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20130000944 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states he was young and stationed in Germany when he started drinking and smoking pot.  He contends that he served over a year with no problems and should have received a general discharge.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge 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.  The applicant was born on 11 April 1964.  He enlisted in the Regular Army on 28 October 1981.

3.  On 23 November 1982, while the applicant was stationed in Germany, court-martial charges were preferred against him for two specifications of wrongfully having in his possession some amount of marijuana in the hashish form on 
26 October and 10 November 1982, two specifications of wrongfully using some amount of marijuana in the hashish form on 26 October and 10 November 1982, and for disobeying a lawful order from his superior noncommissioned officer (NCO).

4.  On 30 November 1982, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

5.  He acknowledged in his request for discharge that 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 acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge (s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged he understood that he could be issued a UOTHC discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a UOTHC discharge.

6.  On 15 December 1982, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 18 January 1983, he was discharged accordingly.  He completed 1 year, 2 months, and 21 days of active duty service. 

7.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  




8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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 UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7b 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 UOTHC discharge should be upgraded because he was young when he started drinking and smoking marijuana has been carefully considered.  

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.  

4.  His record of indiscipline includes court-martial charges for two specifications of wrongful possession of marijuana, two specifications of wrongful use of marijuana, and for disobeying a lawful order from his an NCO.  Based on his record of indiscipline, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  Age is not a mitigating factor for the applicant's misconduct.  He completed initial entry training which shows he was mature enough to serve.  Additionally, he was 18 years, 6 months, and 15 days old at the time of his first offense and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Based on the foregoing, there is no basis to grant the requested relief.

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)                                         AR20130000944



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ABCMR Record of Proceedings (cont)                                         AR20130000944



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