IN THE CASE OF

		BOARD DATE:	    8 July 2014

		DOCKET NUMBER:  AR20130018854 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states, in effect, everyone in his unit knew an associate asked him to pick up a package for him.  He did not know what was in the package.  Apparently, the package contained drugs.  He was not in possession of the package when it was found.  He was charged with a drug-related offense even though everyone in his unit knew he was innocent.  He was pressured and coerced into signing the paperwork agreeing to an undesirable discharge.  He was told that if he did not sign the paperwork he would go to prison.  He signed the paperwork and received an undesirable discharge.  He had no history of drug trafficking or drug use prior to and since his military service.

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 was inducted into the Army of the United States on 10 August 1970.  He held military occupational specialty 95B (Military Policeman).

3.  His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions) dated 8 April 1971 wherein his commander stated the applicant was under investigation for a quantity of approximately 54 vials of a white substance believed to be heroin.

4.  His record contains a DD Form 458 (Charge Sheet) dated 1 June 1971 showing court-martial charges were preferred against him for wrongful possession of 6.96 grams of heroin.

5.  On 13 June 1971, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an other than honorable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily 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.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge.  He further indicated he personally made the choices indicated in his request for discharge.

6.  In his request for discharge he indicated he understood that by requesting discharge he was admitting guilt to the charge against him, or of a lesser 
included offense, that also authorized the imposition of a bad conduct or a 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 an unknown date, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an undesirable discharge and reduction to private/E-1.  Accordingly, he was discharged on 
24 June 1971.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service with an under other than honorable conditions characterization of service.  He completed 10 months and 15 days of creditable active military service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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, an undesirable discharge was normally considered appropriate at the time. 

	a.  Paragraph 3-7a states 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 states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record does not contain and he has not provided any evidence to show the charges against him were untrue or that he was coerced into requesting a chapter 10 discharge.

3.  His record shows he was found to be in possession of 6.96 grams of heroin.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general discharge or an honorable characterization of service.

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)                                         AR20130018854





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ABCMR Record of Proceedings (cont)                                         AR20130018854



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