IN THE CASE OF:	  

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016336 


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 general or honorable.

2.  The applicant states:

* the punishment he received via chapter 10 was too severe given the situation involved
* the Fort Hood U.S. Army Criminal Investigation Command (CID) had no concrete evidence against him 
* by then and today's standards, his offense would have been categorized as a misdemeanor
* he was an exemplary Soldier and Noncommissioned Officer (NCO); he did not have any problems
* he was stationed in Korea and encountered marital problems back home despite providing his spouse at the time with financial support
* he took leave in an effort to resolve the issues but his wife was so far gone that he no longer wanted to be married
* the impact of his marital problems coupled with his assignment to the Demilitarized Zone in Korea led him to slack up
* he suffered through a demotion and the subsequent discharge action and his promising career ended on the negative side
* he knows he played a big factor in his downfall, but with all his contributing factors he believes he went through a form of post-traumatic stress disorder
* he is currently in jail and is planning on being released next year
3.  The applicant does not provide any 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 4 January 1977 and he held military occupational specialty 11B (Infantryman).  He reenlisted in the Regular Army on 11 September 1979.

3.  He served in Panama from 17 May 1977 to 8 May 1979 and from 6 May 1980 to 12 February 1981.

4.  On 14 July 1980, while holding the rank/grade of specialist four (SP4//E-4, in Panama, he was convicted by a summary court-martial of two specifications of wrongfully possessing 10 grams more or less of marijuana.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of pay for one month, and extra duty.  The convening authority approved his sentence on the same date.

5.  On 13 February 1981, also in Panama, he was convicted by a summary court-martial of one specification of wrongfully possessing some amount of marijuana.  The court sentenced him to confinement at hard labor for 30 days.  The convening authority approved his sentence on the same date.

6.  He was promoted through the ranks to sergeant (SGT)/E-5 on 2 October 1982 and staff sergeant (SSG)/E-6 on 12 January 1984.  He was awarded or authorized the NCO Professional Development Ribbon with Numeral 1, Army Service Ribbon, Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

7.  He served in Korea from 21 January 1984 to 18 January 1985.

8.  On 16 August 1985, while holding the rank/grade of SSG/E-6, at Fort Hood, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice failing to go at the time prescribed to his appointed place of duty and wrongfully using some amount of marijuana.  His punishment consisted of a reduction to SGT/E-5 and a forfeiture of pay for two months.  

9.  On 5 September 1985, while holding the rank/grade of SGT/E-5, at Fort Hood, TX, court-martial charges were preferred against the applicant for violating Article 112a of the UCMJ, one specification of wrongfully distributing marijuana.

10.  On 8 October 1985, additional court-martial charges were preferred against the applicant for three specifications of failing to go at the time prescribed to his appointed place of duty.

11.  On 16 October 1985, 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 discharge or a dishonorable 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 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he acknowledged that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances and that he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he understood that if the 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
* he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

12.  In his statement, he chronicled his military career, assignments, and overall service.  He attributed his problems to: 
* finding his household goods and personal life in disarray due to his problems with his wife
* although some of the problems were his fault, others were generated by his chain of command 
* he had custody of his son and he was experiencing financial problems due, in part, to the cost of preschool for his son
* he was finalizing his divorce from his wife who had caused him to lose all possessions he acquired during his military service
* he knows he will face an uphill battle in the civilian world once he gets out and he effectively has to start from scratch
* he would suffer immensely if he were court-martialed and he wanted the chapter 10 instead; he hoped his discharge would be approved

13.  His immediate, intermediate, and senior commanders recommended approval with the issuance of an under other than honorable discharge. 

14.  On 22 October 1985, after a legal review for legal sufficiency and consistent with the chain of command recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10.  The separation authority directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  

15.  On 15 November 1985, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time 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 a court-martial with an under other than honorable conditions discharge.  He completed 6 years, 1 month, and 11 days of creditable active service during the period under review and he had lost time from 13 February to 8 March 1981.
 
16.  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. 

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an undesirable discharge was considered appropriate at the time.
	a.  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.

	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. 

18.  According to the Manual of Courts-Martial, depending on the weight and intent, violating Article 112a carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 to 15 years.  

DISCUSSION AND CONCLUSIONS:

1.  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.  The applicant 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.  Further, his discharge accurately reflects his overall record of service.

2.  With respect to his arguments:

	a.  Contrary to his contention that he was an exemplary Soldier, the evidence of record shows his service was marred with misconduct including two court-martial convictions for drugs, one instance of NJP, and court-martial charges with multiple charges and specifications. 

	b.  Also contrary to his contention that CID did not have concrete proof of his charges, if this was the case, he could have elected trial by a court-martial to prove his innocence.  But he requested a voluntary discharge instead.

	c.  Contrary to his contention that his punishment was severe, had he undergone a trial by the court-martial, his punishment, if he were convicted, could have been a dishonorable discharge.  The punishment for violating Article 112a carries a much more severe punishment than the applicant received.
	d.  Finally, contrary to his contention that he may have suffered from 
post-traumatic stress disorder, nothing in his service record supports this contention. He violated the UCMJ and his options were to face the court-martial which could have adjudged a bad conduct or a dishonorable discharge or request a voluntary discharge.  He chose the latter. 

3.  Based on the applicant's extensive record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his service to either honorable or general.

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)                                         AR20130016336



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ABCMR Record of Proceedings (cont)                                         AR20130016336



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