IN THE CASE OF:
BOARD DATE: 31 October 2013
DOCKET NUMBER: AR20130005729
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, in effect, an upgrade of his general discharge under honorable conditions to honorable.
2. The applicant did not clearly identify his request.
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a National Archives and Records Administration Form 13046 (Response to Request for Separation Documents/Information).
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 inducted into the Army of the United States on 10 October 1972.
3. His complete separation packet is not available. However, the available evidence shows he was charged with violation of Article 92 of the Uniform of Code of Military Justice (UCMJ) for wrongful possession of 95 tablets of "Mandrax" (methaqualone, commonly known by the brand name Quaalude) and violation of Article 121 of the UCMJ for stealing three cassette tapes.
4. His DD Form 214 shows he was discharged on 25 November 1974 in the rank/grade of private/E-1 after completing 2 years, 1 month, and 16 days of creditable active service. It also shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, with his service characterized as under other than honorable conditions.
5. On 25 August 1978, the Army Discharge Review Board (ADRB) upgraded his discharge to general, under honorable conditions. The ADRB indicated the upgrade was based on the fact that the applicant had excellent service with no other record of indiscipline up until he committed the offense for which he requested discharge in lieu of trial by court-martial.
6. He provides a National Archives and Records Administration Form 13046. This form indicates he was provided a copy of his separation document per his request. This form does not contain information pertaining to his discharge proceedings.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10, 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, the 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 to an individual who was discharged for the good of the service.
8. Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an upgrade of his general discharge under honorable conditions to honorable has been carefully considered.
2. His complete separation packet is not available. The available evidence indicates he was charged with the commission of an offense or offenses 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. It is presumed that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial after consulting with legal counsel. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.
3. His record of indiscipline includes violation of Article 92 of the UCMJ for wrongful possession of 95 tablets of methaqualone and violation of Article 121 of the UCMJ for stealing three cassette tapes. Based on the seriousness of his offenses, his overall record of service did not support the upgrade of his discharge to fully honorable by the ADRB and it does not support an upgrade of his discharge now.
4. Based on the forgoing evidence, 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 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) AR20130005729
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