IN THE CASE OF:	  

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130012507 


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 a general, under honorable conditions discharge.

2.  The applicant states he believes his discharge is inequitable because the use of drugs was encouraged by his commander, Captain (CPT) R____.  CPT R____ gave him a pipe as a gift to be used to smoke marijuana.  Drug use was treated as normal in his unit and he did not want to let his officer down.  He did not think of the consequences of his actions.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 31 January 1972 and he held military occupational specialty 13A (Field Artillery Basic).  On 20 August 1972, he was assigned to the 5th Battalion, 81st Field Artillery, Germany.

3.  On 7 June 1973, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification of each of:

* unlawfully being in possession of a controlled substance, eight foil packets of heroin, on 2 April 1973
* unlawfully being in possession of a controlled substance, marijuana, on 23 April 1973.

4.  On 23 August 1973, court-martial charges were preferred against him for one specification each of:

* violating a lawful general regulation by being in possession of a controlled substance, marijuana, on or about 3 July 1973
* violating a lawful general regulation by being in possession of a controlled substance, heroin, on or about 3 July 1973

5.  On 7 September 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the 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 requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 

7.  On 7 September 1973, his immediate commander recommended approval of his request for a discharge.  The commander stated there was little chance of rehabilitation of the applicant, he had been involved with drugs on four separate occasions, he had been counseled on numerous occasions, and he had a history of drug involvement dating back to October 1972.  He further recommended the issuance of a General Discharge Certificate.    

8.  On 7 September 1973, his intermediate commander recommended approval of the discharge action and stated the applicant had a history of drug abuse and had not responded to counseling.  Because of his problem with drugs, he had become a disruptive influence in his unit.  It was his opinion he should be removed from the Army as expeditiously as possible with the issuance of an Undesirable Discharge Certificate.

9.  On 10 September 1973, his senior commander recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate.

10.  On 14 September 1973, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 15 October 1973, he was discharged accordingly.

11.  The DD Form 214 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 (separation program number 246) with an under other than honorable conditions characterization of service.  He completed 1 year, 8 months, and 15 days of net active service.

12.  On 20 May 1982, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge and determined his discharge was both proper and appropriate.  In his application to the ADRB, he stated at the time of his service he was immature and fell in with the wrong crowd.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

14.  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.

15.  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 evidence of record confirms the applicant 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.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

3.  Notwithstanding his contention that he was encouraged by his commander to use drugs, he did not provide any evidence that supports this allegation.  In addition, the evidence of record does not show that he raised this as an issue at the time of his discharge processing in 1973 or in his application to the ADRB in 1982.  

4.  His record of service shows he received NJP for unlawfully possessing heroin and marijuana and just 3 months later was apprehended for unlawfully possessing heroin and marijuana.  

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130012507





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ABCMR Record of Proceedings (cont)                                         AR20130012507



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