IN THE CASE OF:	

		BOARD DATE:	    20 February 2014

		DOCKET NUMBER:  AR20130008895 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states he believes the record to be in error, unjust, and inequitable.  Although his duty performance and attitude were above average, his off-duty behavior and conduct were contrary to social and legal standards.  His offense was possession of marijuana with intent to sell.  He states current standards are more liberal than those under which he was discharged.  The character of discharge was too harsh at the time it was issued.  He had received an honorable discharge for his service from 20 January 1972 to 30 July 1974.

	a.  He was discharged for possessing a small amount of marijuana.  His discharge is inequitable and should be re-characterized to fully honorable pursuant to "32 CFR 70.6 (c) (1)."  (Note:  A review of Title 32, Code of Federal Regulations (CFR) shows section 70.6 does not have a paragraph (c).)

	b.  The "Clator Memo (Nov 5.1979)" differs in material respects from the policies and procedures under which he was discharged in that, under present standards, for cannabis offenders who use or possess a minor amount or who otherwise have a good record, the use of an Article 15 as opposed to a trial by court-martial is appropriate.  (Note:  A search was unable to produce the "Clator Memo (Nov 5.1979)" and the applicant did not provide a copy.)

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with an effective date of 9 August 1976. 

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.  On 20 January 1972, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Police).  He was promoted to specialist four on 
10 December 1973.  On 30 July 1974, he was discharged to immediately reenlist.  He completed 2 years, 6 months, and 11 days of active service that was characterized as honorable.

3.  On 31 July 1974, he reenlisted for 3 years.

4.  His Military Personnel Records Jacket (MPRJ) contains an Enlisted Evaluation Report for the period September 1975 to April 1976.

	a.  He was assigned to the unit supply room as a clerk and a truck driver.

	b.  His rater stated he was pending a reclassification out of MOS 95B.  His duty performance had been poor and needed improvement in initiative and soldierly traits.

	c.  His indorser stated his duty performance had been one of apathy.  He required constant supervision and counseling sessions in a futile attempt to bring him up to required standards of personnel assigned to the unit.  His lack of initiative, military bearing, and moral fiber placed him below the desired standards of a person of his rank.

5.  The complete facts and circumstances of his discharge are not contained in the available records.  However, his DD Form 214 shows he was discharged on 9 August 1976, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, and issued an Undesirable Discharge Certificate.  He completed 2 years and 9 days of net active service this period that was characterized as under conditions other than honorable.

6.  On 24 July 1979, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that his service was properly characterized as under other than honorable conditions.

7.  The Manual for Courts-Martial (2008 Edition) indicates the maximum punishment for wrongful use or possession of less than 30 grams of marijuana is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.  The maximum punishment for wrongful distribution of marijuana is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

9.  Army Regulation 635-200, currently in effect, states that for a member discharged under the provisions of chapter 10 a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  He contends his duty performance and attitude were above average.  However, his EER for the period ending April 1976 contradicts his contention.

2.  His record does not include the complete facts and circumstances surrounding his discharge.  He indicates he was charged with possession of and intent to sell marijuana, offenses for which he could have been sentenced to a punitive discharge by a court-martial.  His DD Form 214 confirms he was discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In making his request, he would also have admitted his guilt.  It is presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  He contends his discharge was too harsh and he would not have received the same discharge under current standards.  However, based on his request for discharge under the provisions of Army Regulation 635-200, chapter 10, under current standards he would also have received a discharge under other than honorable conditions.  Therefore, the characterization of his discharge is equitable.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge 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)                                         AR20130008895





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ABCMR Record of Proceedings (cont)                                         AR20130008895



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