BOARD DATE:	 12 December 2013 

		DOCKET NUMBER:  AR20130006337 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  He is requesting an upgrade of his discharge to an honorable discharge because it has been over 30 years and he is an improved man.  He has accomplished a lot in life and feels the character of his service is hindering the character of who he is today.

	b.  He believes the captain (CPT) was treating him unfairly; he was a sergeant (SGT)/E-5 and he was still being treated like a private (PVT)/E-1.  After working under the CPT, he went from and E-5 to an E-1 and he felt the need to resign.  He feels the CPT was a threat to him so he needed to get away from it all and start a new life.

3.  The applicant provides no additional evidence.

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 10 January 1979 and he held military occupational specialty 11C (Indirect Fire Infantryman).  On 7 May 1979, he was assigned to the 2nd Battalion, 34th Infantry Regiment, Fort Stewart, GA.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4).

3.  On 6 June 1980, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for one specification each of wrongfully possessing marijuana and wrongfully appropriating government property.

4.  On 28 October 1980, he was assigned to the United Nations Command Honor Guard Company, Korea.  On 1 December 1980, he was promoted to SP4.

5.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 23 January 1981, for sleeping while on guard duty
* 10 October 1981, for wrongfully possessing and selling marijuana

6.  These two Article 15s are not available for review with this case.  On 21 December 1981, he was reduced to the rank of PVT/E-1.

7.  On 6 January 1982, court-martial charges were preferred against him for wrongfully purchasing and selling controlled items.  

8.  On 22 January 1982, his immediate commander recommended a Bar to Reenlistment Certificate be placed against him.  The commander stated that at that time the applicant was pending a court-martial for the purchase and sale of controlled items.  He further stated he (the applicant) had demonstrated he was unsuitable for continued service and his attitude and behavior were detrimental to all Soldiers whom he was in contact with.  He would not accept responsibility for his actions and demonstrated that further service would be a mistake.  On 15 July 1981, he had been given a letter of reprimand for reckless driving of the company vehicle and he had been counseled prior to the incident for his driving habits.  On 23 October 1981, he was counseled for disrespect to noncommissioned officers.  The Bar to Reenlistment Certificate was subsequently approved and placed in his records.

9.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain an Army Discharge Review Board (ADRB) Record of Proceedings, dated 18 November 1982, wherein it stated:

	a.  On 6 January 1982, the applicant was charged with wrongfully purchasing goods brought into Korea duty-free in quantities which exceeded reasonably anticipated personal needs or the needs of his dependents, from January to September 1981.  He failed to present valid information and documentation to his immediate commander showing the continued possession and lawful disposition of certain controlled items.

	b.  On 18 January 1982, he consulted with legal counsel and subsequently he submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  

	c.  On 20 January 1982, the Chief, U.S. Army Legal Service Activity - Korea, indicated the applicant's immediate commander recommended approval of his request for a discharge with an under other than honorable conditions discharge and the intermediate commander recommended disapproval of the request for a discharge [and that he be court-martialed].  The Chief recommended approval of his request for a discharge with an under other than honorable conditions discharge.

	d.  On 26 January 1982, the approving authority approved the applicant's request for a discharge for the good of the service and directed the issuance of an under other than honorable conditions discharge.

10.  In addition, his records contain the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued that shows he was discharged on 10 February 1982, in the rank of PVT, under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial with an under other than honorable conditions characterization of service.  

11.  On 18 November 1982, the ADRB denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  A discharge under other than honorable conditions was normally considered appropriate.

13.  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.

14.  Army Regulation 635-200, 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 record is void of the specific facts and circumstances surrounding his discharge processing.  However, it appears court-martial charges had been preferred against him for wrongfully purchasing and selling controlled items, an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation appear to have been appropriate considering all the facts of the case.  

3.  The applicant contends his discharge should be upgraded because it has been 30 years since his discharge and he was treated like a PVT by his commander when he was a SGT.  The evidence of record does not show that he ever attained the rank of SGT or that he was unfairly treated by his commander, another CPT, or anyone else.  The fact that over 30 years has passed since his discharge does not mitigate the fact that he committed multiple acts of misconduct during his military service.

4.  The evidence of record confirms he received NJP on three occasions for wrongfully possessing marijuana (twice), appropriating government property, sleeping on guard duty, and selling marijuana.  In addition, at the time court-martial charges were preferred against him he was barred from reenlistment.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130006337





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ABCMR Record of Proceedings (cont)                                         AR20130006337



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