IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130010231 


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he submitted forms in 2011 and 2012 to have his discharge upgraded.  He also states:

* He received a UOTHC discharge for admitting he smoked marijuana
* He never had a "dirty" urine test and was not the kind of person who got into trouble
* He just made a young person's mistake, which he admitted to upon the advice of his sergeants and the investigator
* He was told he would probably get restriction and extra duty but his commanding officer pushed for discharge
* He was also told that it would automatically become a general discharge after one year
* He has just graduated from Triton College with honors.  He has a 4-year old son and another child on the way
* The VA told him he needed to get his discharge upgraded so he would qualify for benefits 

3.  The applicant provides a transcript from Triton College. 



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 on 8 August 1995 and completed training as a heavy weapons infantryman.  He was assigned to the 101st Airborne Division and advanced to pay grade E-3.  

3.  Between May 1996 and May 1997 he received six adverse counseling statements for being absent from his place of duty, displaying a poor attitude, and presenting an unacceptable appearance.  In June 1997 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for absence from guard duty.

4.  On 2 September 1997, general court-martial (GCM) charges were preferred against the applicant for one specification each of using and distributing marijuana.

5.  On 25 September 1997, the GCM charges were dropped in exchange for the applicant's agreement to:

* waive his right to have an administrative discharge board if the command recommended separation
* plead guilty at a summary court-martial (SCM) to one specification of using marijuana

6.  The SCM was completed on 8 October 1997 and the convening authority approved and ordered executed the sentence consisting of reduction to pay grade E-1 and forfeiture of $600.  

7.  A medical examination found him qualified for further service or discharge.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

8.  The company commander notified the applicant of his intention to recommend separation with a UOTHC discharge for the commission of a serious offense.  He pointed out the possible consequences of such a discharge and the applicant's attendant rights.

9.  The applicant consulted with counsel and reserved his right to consulting counsel and requested all other attendant rights.  He indicated he understood he could expect to encounter substantial prejudice in civilian life and that he might be ineligible for veterans' benefits under Federal and State laws.

10.  The company commander recommended his separation with a UOTHC discharge.  

11.  The applicant submitted a letter on his own behalf in which he acknowledged that he had made a huge mistake and asked for a second chance.  He also submitted letters of support from a specialist; two sergeants, who were or had been his squad leader; his platoon sergeant, a staff sergeant; and his platoon commander, a 1st lieutenant. 

12.  The chain of command recommended approval and the separation authority so directed.

13.  On 26 November 1997, the applicant was discharged UOTHC under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.

14.  There is no indication that the applicant ever applied to the Army Discharge Review Board.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.    Paragraph 3-7a states 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 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.  

	c..  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense.  A serious offense is one in which the specific circumstances warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts Martial (MCM).  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  

16.  The Table of Maximum Punishments in the MCM shows that a punitive discharge is authorized for any drug offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he received a UOTHC discharge for admitting he smoked marijuana.  He was not the kind of person who got into trouble.  

2.  Prior to the commencement of the actions that led to the discharge the applicant had received adverse counseling statements for misconduct, a poor attitude, and unacceptable appearance and he had accepted NJP for missing guard duty.

3.  The applicant and his defense counsel clearly made a plea bargaining arrangement so as to avoid the risk of a punitive discharge for the distribution of marijuana.  However, that plea bargain arrangement did nothing to change the reality that there was sufficient evidence to have referred the charge of distribution to a general court-martial.

4.  Separation and characterization of applicant's service as having been served UOTHC was fully justified by the facts of the case.

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.  

7.  In addition, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service of the reason for discharge or both were improper or inequitable.

8.  There is no basis for upgrading the 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)                                         AR20130010231





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ABCMR Record of Proceedings (cont)                                         AR20130010231



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