IN THE CASE OF: 

		BOARD DATE:	    27 March 2014

		DOCKET NUMBER:  AR20130012530 


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 discharge under other than honorable conditions.

2.  The applicant states:

* he did nothing wrong associated with this discharge
* he lived in an off-post apartment in Germany and he had a party with 10 to 12 friends invited
* an officer walked in and conducted an investigation; he found one marijuana joint that someone had left in the apartment
* he was busted down from E-4 to E-2 and he was sent to a different unit to be a cook
* he was asked if he wanted out of the service; he felt he had been unjustly demoted and treated inappropriately and he decided to take the discharge

3.  The applicant provides no additional 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.  The applicant's records show he enlisted in the Regular Army on 17 January 1980 and he was trained in and held military occupational specialty 14D (Lance Missile Crewman).  

3.  He served in Germany from 4 May 1980 to on or about 30 March 1983.  He was assigned to the 75th Field Artillery Detachment.

4.  On 13 August 1982, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.  A portion of the reduction in excess of reduction to E-2 and the forfeiture were suspended. 

5.  On 30 July 1982, he was disqualified from the Personnel Reliability Program and removed from his position involving nuclear duty.  He was reassigned to Headquarters and Headquarters Detachment, U.S. Military Community Activity, Worms.  

6.  On 11 December 1982, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 4 January 1983.  

7.  On 6 January 1983, court-martial charges were preferred against him for one specification of being AWOL from 11 December 1982 to 4 January 1983. 

8.  On 22 February 1983, 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 or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits
* he acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation or to perform further military service

9.  In a personal statement submitted with his request for voluntary discharge, the applicant stated he knows he made a mistake and he is sorry for what he did. 

10.  His immediate, intermediate, and senior commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

11.  On 9 March 1983, the separation authority approved the applicant's 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, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 31 March 1983, he was discharged accordingly.

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 3 years, 1 month, and 21 days of creditable active service and lost time from 11 December 1982 to 3 January 1983. 

13.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

14.  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 includes 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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 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'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.  

2.  The applicant was not discharged because of his wrongful possession of marijuana.  The evidence of record clearly shows the court-martial charges were related to AWOL.  He was advised of his rights and knew the implications of his choice.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge to either 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)                                         AR20130012530





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ABCMR Record of Proceedings (cont)                                         AR20130012530



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