IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130004449 


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 undesirable discharge.

2.  The applicant states:

* his punishment was unjust because prior to the last three months of service he had an outstanding career and he received numerous awards and decorations
* he doesn’t disagree with the fact that he made a mistake, but he was a young man and he made a bad decision that has haunted him since that day
* he was a good troop; he supported his country and the current character of service does not reflect this 

3.  The applicant provides:

* medical documents
* personal statements
* awards and letters of commendation

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 17 August 1955.  He enlisted in the Regular Army on 26 June 1973 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 11B (light weapons infantryman).  He served in Korea from 9 November 1973 to 10 December 1974.

3.  On 16 September 1975, he was charged with possession, use, sale, and introduction of marijuana on a military base.  

4.  On 18 September 1975, after consulting with counsel, the applicant submitted a request for 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.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he dedicated 26 months of active duty service to the Army
* prior to this situation he had never been in any trouble with the Army or his superiors
* he was Soldier of the Month three times
* he had lunch with President Ford and was a company counselor
* he received the Army Commendation Medal (ARCOM) and letters of commendation

5.  The separation authority's action is not available.

6.  On 6 October 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and furnished an Undesirable Discharge Certificate.  He completed 

2 years, 3 months, and 11 days of total active service.  His DD Form 214 (Report of Separation from Active Duty) shows he was authorized the:

* National Defense Service Medal
* Armed Forces Expeditionary Medal 
* Expert Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle and Grenade Bars 

7.  On 25 February 1988, the Army Discharge Review Board denied his request for an honorable discharge.

8.  He provides a letter from his psychiatrist who attests the applicant has been treated since 1999 for bipolar disorder and post-traumatic stress disorder.

9.  He provides numerous character reference letters from employers and friends attesting that the applicant:

* is a very dependable and conscientious worker
* is very intelligent, reliable, and honest
* is very responsible
* regrets his actions
* is an asset to his organization
* has tremendous potential 

10.  He also provides an award certificate and citation for the ARCOM for meritorious service during the period 17 December 1973 to 16 December 1974.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service.


	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 contends he was a young man and he made a bad decision.  However, age is not a sufficiently mitigating factor.  Although he was almost 
18 years old when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, he completed over 2 years of service prior to his misconduct.

2.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  His record of service included serious drug offenses (with possession, use, sale, and introduction of marijuana on a military base).  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

6.  In view of the foregoing, there is no basis for granting the applicant an honorable or 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)                                         AR20130004449



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ABCMR Record of Proceedings (cont)                                         AR20130004449



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