IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130012339 


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 that his undesirable discharge (UD) be upgraded.

2.  The applicant states a Soldier in his unit went absent without leave (AWOL) and was captured in his hometown.  He told the authorities that he had gone AWOL because he was afraid of the applicant and several other members of the unit who were drug dealers.  The applicant contends that this was not true.  The allegation caused the applicant to be arrested.  

3.  He states he was told he could either face court-martial charges or voluntarily leave the service.  He had served honorably for more than 5 years.  He was afraid of the court-martial proceedings.  He was also in the middle of getting divorced and was not sure what his future held.  He chose, out of fear, to leave the military.  He admits to occasionally smoking marijuana, but he was never a dealer.  He does not know what else to say, except that he feels badly about what happened and how it has affected his life.  He would completely understand if the decision is no, but felt he needed to at least ask for this upgrade.

4.  The applicant provides no additional documentary 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.  On 30 June 1971, the applicant enlisted in the Regular Army.  He was advanced to specialist four, pay grade E-4 on 11 February 1972.

3.  On 30 March 1973, the applicant reenlisted for another 3-year term of active duty service.  He was promoted to specialist five, pay grade E-5 on 10 January 1974.

4.  On or about 16 July 1976, charges were preferred under the Uniform Code of Military Justice (UCMJ) for the following violations:

	a.  Article 92 (two specifications) for violating a lawful general regulation by having an unregistered pistol in his possession and for having such concealed between the seats of his automobile.

	b.  Article 134 (nine specifications) for unlawful possession, sale, or transfer of marijuana or hashish, a derivative of marijuana, on divers occasions between 11 June and 2 July 1976.

5.  On or about 16 July 1976, the applicant consulted with counsel and was advised of his rights and options.  He was informed that if he was convicted of the charges against him, he could receive the maximum punishment of a dishonorable discharge and 49 years confinement at hard labor.  The applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UD which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UD.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 31 August 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 7 September 1976, the applicant was discharged accordingly.  He had completed a total of 5 years, 2 months, and 6 days of creditable active duty service and had 2 days of time lost.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 contends that his UD should be upgraded because the allegation he was a drug dealer was not true.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Evidence shows that the applicant admitted to being guilty of the charges.  He has not provided any documentary evidence or convincing argument to show otherwise.

4.  There is no error or injustice in the applicant's case.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130012339





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ABCMR Record of Proceedings (cont)                                         AR20130012339



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