IN THE CASE OF:  

		BOARD DATE: 8 August 2013

		DOCKET NUMBER:  AR20130001096 


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 discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 12 years and 9 months of service with no other adverse action.  During his service he loved the Army.  The enclosed documents show that his commanders were more than satisfied with his performance.  He made a wrong decision due to circumstances in his personal life.  He feels that all of his years of honorable service should be taken into consideration and not cancelled due to one isolated wrong incident.  Since his discharge he has been gainfully employed with several blue chip companies and at each place his commitment to his employer has gained the respect and acknowledgement of his supervisors.  He has also been active in ministry for the last 20 years serving people who experience divorce.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 13 March 1979, DA Form 458 (Charge Sheet), reverse sides of two DA Forms 2166-5 (Enlisted Evaluation Report (EER)), 14 supporting letters, and two Honorable Discharge Certificates.

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 25 February 1966.  His final reenlistment was on 19 November 1976.  He held military occupational specialty 68H (Helicopter Weapons System Repairman).

3.  He was issued separate DD Forms 214 showing honorable active duty service for the following periods:

* 25 February 1966 to 2 January 1969
* 3 January 1969 to 20 April 1971
* 21 April 1971 to 18 November 1976

4.  He served in Vietnam, Germany, and Korea.  The highest rank he attained was staff sergeant/E-6.

5.  On 24 January 1979, charges were preferred against the applicant (then a SSG/E-6) for three specifications of possession of marijuana with intention to sell it to a private first class/E-3.

6.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge UOTHC which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.

7.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of a discharge UOTHC.  The separation authority approved the recommendation on 6 March 1979.

8.  On 13 March1979, the applicant was so discharged.  He completed a total of 13 years and 15 days of active duty service.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  In support of his request, he provided:

* reverse sides of two EER's reflecting his outstanding performance of duty
* four letters of commendation, recommendation, and/or appreciation recognizing his accomplishments during his active duty service
* eight letters from employers and co-workers attesting to his excellent work performance

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides the basic authority for the separation of enlisted personnel.

	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 UOTHC 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's contention that his discharge was not equitable because it was based on one isolated incident in over 12 years of service and should be upgraded was carefully considered and determined to be without merit.

2.  The applicant was an SSG when he was charged with wrongful possession of marijuana with the intent to sell to a PFC.  His conduct was well below that expected of a noncommissioned officer.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general.

4.  The letters of support and other evidence provided by the applicant were noted.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge.

5.  He was issued DD Forms 214 to document his previous honorable periods of active duty service.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100027085



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001096



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1