BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130014321 


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.  He states he was discharged for selling cartons of cigarettes.  He was searched, and a marijuana cigarette was found on him.  Counsel advised him to take an under other than honorable conditions discharge.  He indicates he had an alcohol abuse problem, but he is now alcohol and drug free.  He is committed to his community and is "now settled with life improvements."  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 27 November 1979, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 05C (Radio Teletype Operator).  

3.  A Standard Form 600 (Chronological Record of Medical Care) contains an entry dated 6 June 1980 showing he was enrolled in the Community Drug and Alcohol Assistance Center (CDAAC) program.  The available records do not show the reason for his enrollment in the program.

4.  On 24 July 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 30 June 1980 and remaining absent until 1 July 1980.  

5.  On 9 January 1981, his company commander completed a DA Form 4126-R (Bar to Reenlistment Certificate) recommending that the applicant be barred from reenlistment based on:

* the NJP he received on 24 July 1980
* a letter of indebtedness, dated 23 September 1980
* a letter regarding failure to support dependents, dated 2 July 1980

On 17 February 1981, the applicant's division commander approved the bar to reenlistment.

6.  The complete facts and circumstances of his discharge are not contained in the available records.  However, his records include a DD Form 214 showing he was discharged on 25 March 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, with the narrative reason for separation shown as "administrative discharge conduct triable by court-martial."  He completed 1 year, 3 months, and 29 days of total active service, and his service was characterized as under other than honorable conditions.

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

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.

	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 evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The complete facts and circumstances of his discharge are not available.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Absent evidence to the contrary, the applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  The record shows the applicant was enrolled in the CDAAC program.  There is no evidence indicating that the reason for his enrollment in this program should have been considered as a mitigating factor in the characterization of his service. 

4.  He states he is now free of drugs and alcohol and is committed to his community.  Any efforts he has made to improve his wellbeing should be commended.  However, post-service accomplishments are not usually a sufficient basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  By requesting discharge under the provisions of Army Regulation 635-200, chapter 10, he admitted he was guilty of an offense for which the authorized punishment included a punitive discharge.  Based on such an admission and the other instances of indiscipline documented in his record, his service was unsatisfactory, and an under other than honorable conditions discharge was appropriate.

6.  In view of the foregoing, there is no basis for granting the requested relief.  

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)                                         AR20130014321





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ABCMR Record of Proceedings (cont)                                         AR20130014321



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