IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130005564 


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 to an honorable or a general discharge.

2.  The applicant states he believes that when the incident happened he was not given due process.

3.  The applicant provides a self-authored statement, dated 14 March 2013, and two prayers.

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 June 1976.  He completed training as an infantryman.

3.  On 27 April 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for negligently failing to properly secure his M-16 rifle by leaving the weapon on his bunk.

4.  On 29 December 1977, he accepted NJP under Article 15, UCMJ for wrongfully possessing marijuana.

5.  On 20 January 1978, the applicant was notified that charges were pending against him for:

* Striking his superior commissioned officer on 18 January 1978
* Offering violence against another superior commissioned officer on
18 January 1978
* Wrongfully possessing a habit-forming narcotic drug (cocaine) on
18 January 1978

6.  On 23 January 1978, having been advised by legal counsel, he 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.

7.  The applicant acknowledged he understood that:

* If his request for discharge was accepted, he could be discharged under conditions other than honorable conditions and be issued an Under Other Than Honorable Conditions Discharge Certificate
* As a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* He could be ineligible for many or all benefits administered by the Veterans Administration
* He could be deprived of his rights and benefits as a veteran under both Federal and State laws
* He could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

8.  In his request for discharge, he elected to submit a statement in his own behalf.  He stated there had not been a bright side to anything from the time he arrived at Fort Lewis, WA.  He stated he was being charged with possession of a 

controlled substance and with assault.  He stated he was confined in the Fort Lewis stockade and that he would like to save himself and others a lot of trouble and time by just getting out of the Army.  He stated he offered nothing to the Army and the Army offered him nothing.

9.  On 31 January 1978, the appropriate separation authority approved the request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 21 February 1978, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 7 months, and 27 days of total active service.

11.  On 21 October 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  The applicant provides a self-authored letter wherein he stated:

* He attended a party in the barracks and he broke bread for awhile and had a few beers
* Later, when he was helping clean up, he picked a baggie that he believed was empty and he inadvertently shoved it into his pocket
* The next day he slept in late only to be awakened by his roommate accusing him of being on drugs
* His room was searched and nothing was found except a marijuana seed
* He ended up in the stockade and he lost his rank
* He felt violated from the time he left Michigan, going to his next assignment
* He believed that the Army made men, not failures
* He did not feel like a man with his self-esteem gone by not receiving an honorable discharge

13.  Army Regulation 635-200 (Personnel Separations) sets forth 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 under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states 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 states 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 contentions have been noted.  His supporting statement has been considered.

2.  His record shows he accepted NJP on two separate occasions for failing to secure his weapon and for wrongfully possessing marijuana.  Charges were later also pending against him for striking his superior commissioned officer; offering violence against his superior commissioned officer; and possessing a habit forming narcotic drug (cocaine).

3.  He submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.

4.  The type of discharge he received appropriately reflects his overall record of service.  Considering the nature of his offenses, the type of discharge he received was not too harsh.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant either 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)                                         AR20130005564



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ABCMR Record of Proceedings (cont)                                         AR20130005564



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