BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130006999 


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, reconsideration of his earlier request for an upgrade of his under other than honorable condition discharge.

2.  The applicant states:

* he enlisted in the Army at age 17 and intended to make the Army a career
* one weekend, after returning to the barracks, he and his roommate noticed marijuana on the desk
* he moved the marijuana around with his military identification card when suddenly the commander walked in
* the commander advised them of their rights despite the fact that the marijuana did not belong to him (applicant)

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC-75-07546, dated 7 December 1977. 

2.  The original Record of Proceedings addressed an upgrade of the applicant's characterization of service to general; it did not consider the honorable characterization.  This now will be considered by the Board.
3.  The applicant was born in September 1954 and he enlisted in the Regular Army at 17 years and 7 months of age on 28 April 1972.  He held military occupational specialty 44C (Welder) and he was assigned to the 502nd Supply and Transport Battalion, 2nd Armored Division, Fort Hood, TX. 

4.  He was awarded or authorized the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

5.  On 13 December 1972, his command preferred court-martial charges against him for one specification of wrongfully possessing marijuana.  

6.  On 22 January 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested 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 for discharge he indicated:

	a.  he was making the request of his own free will and he had not been subjected to any coercion by anyone;

	b.  he also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; 

	c.  he further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and 

	d.  he elected not to submit a statement on his own behalf. 

7.  On 7 February 1973, the applicant's immediate commander recommended disapproval of the discharge action.  He stated that the applicant had worked hard since his arrival to the unit and he had performed his duties in a military manner.

8.  On 8 February 1973, the applicant's intermediate commander recommended approval of the discharge action with the issuance of an undesirable discharge.  He stated that although the applicant had performed well, his discharge is based on the severity of the charges of possessing marijuana in the unit barracks. 

9.  On 13 February 1973, the applicant's senior commander recommended approval of the discharge action with the issuance of an undesirable discharge. 

10.  On 23 February 1973, the separation authority approved the applicant's request for voluntary discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

11.  The applicant was accordingly discharged on 27 March 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows 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 with the issuance of an Undesirable Discharge Certificate.  This form confirms he completed 11 months of total active service.

12.  On 17 January 1974, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

13.  On 16 December 1977, the ABCMR considered his case and determined that his tenure of service did not warrant the issuance of an undesirable discharge.  As such, the Board granted relief in the form of an upgrade of his characterization of service to an under honorable conditions (general).  

14.  Accordingly, his DD Form 214 was voided and he was reissued a new 
DD Form 214 (Report of Separation from Active Duty) that reflects his upgraded characterization of service (general).

15.  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.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	a.  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.

	b.  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 record shows he was charged with the commission of 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 in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  If he believed he was innocent he could have accepted trial by court-martial.

2.  The applicant was 17 years and 7 months of age at the time of enlistment and 18 years of age at the time he committed his offense.  Although it may appear he was young at the time, there is no evidence that his misconduct was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

3.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and the under honorable conditions (general) characterization is appropriate to those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

4.  The original Board considered the totality of the situation and determined the applicant's service did not warrant the issuance of an undesirable discharge.  As such, the Board granted relief in the form of an upgrade of his characterization of service to an under honorable conditions (general).  
5.  However, based on his misconduct, his service did not rise up the level of an honorable characterization.  This 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.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable characterization of service. 

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 to amend the decision of the ABCMR set forth in Docket Number AC-75-07546, dated 7 December 1977.




      __________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)                                         AR20130006999





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ABCMR Record of Proceedings (cont)                                         AR20130006999



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