BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130019026 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he served honorably in the Regular Army from May 1981 through September 1983.

   a.  He states that his trouble started when he failed a urinalysis test; one test was accurate, but another one was not.  He adds the nature of marijuana is that it remains in the individual's system for a long period of time and that is why he failed the second test.

   b.  A Soldier with whom he was associating at the time stole expensive camera equipment from him.  He reported this to the military police (MP); however, they did nothing because he had left his barracks room unsecured.  He acknowledges that he often left his barracks room unsecured.

   c.  On several occasions he confronted the Soldier about stealing from him, but he always denied the allegation.  In fact, the Soldier threatened to kill him.  In addition, the MPs consistently ignored his requests to investigate the matter.

   d.  He was subsequently confronted by the MPs who were accompanied by a drug sniffing dog.  The found a bag of marijuana in his room.  He denied that the marijuana was his and claimed that he was set-up by the other Soldier; however, he could not prove it.

   e.  He saw a counselor who recommended that he leave the Army.  An officer of the Judge Advocate General’s Corps also advised him not to fight the charges against him and to request a discharge under other than honorable conditions, otherwise he would be imprisoned for the next six years.  In addition, he was treated poorly by his supervisor and others in the unit who knew him because they had concluded that he was guilty even before any investigation or trial.  He elected to take the easy way out and requested a discharge.
 
   f.  He states he had a flawless military record for 2 years and 9 months.  He was promoted ahead of his peers and received many letters of commendation.  He adds that he regrets his actions and his failure to report the other Soldier for his criminal actions.

   g.  He requests the board disregard the court-martial action against him and consider the events as he has related them. 
   
   h.  He requests the Board also consider his record of the last 25 years.  He is a professional, state-licensed contractor and a hard-worker in his community.  He has been in business as an employer for over 12 years and he has a good solid reputation.  He is tired of living with regret and depression because of this blemish on his life.

   i.  He concludes by stating that he believes he has paid his debt for his actions while serving in the Army.  He adds that his prior military service and post-service achievements are worthy considerations for upgrade of his discharge to fully honorable.

3.  The applicant provides a copy of his promotion orders and two letters of commendation.

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 7 May 1981 for a period of 3 years.  He was awarded military occupational specialty 94B (Food Service Specialist).  He was promoted to specialist four (E-4) on 1 February 1983.

3.  He accepted nonjudicial punishment (NJP) on two occasions for:

* failing to obey a lawful order on 22 June 1983
* failing to report at the prescribed time to his appointed place of duty on
17 July 1983

4.  On 23 November 1983, court-martial charges were preferred against the applicant for wrongfully possessing 62.83 grams, more or less, of marijuana on an installation under military control.

5.  On 30 November 1983, the colonel serving as Staff Judge Advocate reviewed the entire file and recommended the charge and specification be referred to trial by special court-martial (SPCM) empowered to adjudge a bad conduct discharge.  The SPCM convening authority approved the recommended action.

6.  On 30 November 1983, the applicant consulted with legal counsel.  He was informed of the charges against him for violations of the Uniform Code of Military Justice (UCMJ) and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, 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 if he were given an under other than honorable conditions.

	c.  He was also advised that he could submit any statements he desired in his own behalf.  He elected not to submit statements in his own behalf.

	d.  The applicant and his counsel placed their signatures on the document.
7.  The applicant's immediate and intermediate commanders recommended approval of his request for discharge with an Other Than Honorable Discharge.

8.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed characterization of his service as under other than honorable conditions.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 December 1983 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.  He completed 2 years, 7 months, and 17 days of net active service during this period.

10.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

11.  In support of his application the applicant provides two letters of commendation from the Commander, 4th Training Brigade, U.S. Army Armor Center, Fort Knox, KY, dated 17 May 1983 and 6 September 1983, with endorsements by the Commander, 13th Battalion, 4th Training Brigade, that thanked the applicant for his contributions to the successful completion of the
10 March 1983 through 5 May 1983 and 9 June 1983 through 3 August 1983 training cycles, and his guidance in molding trainees into highly motivated Soldiers with no unauthorized absences during the training cycles.

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

	a.  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.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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 contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge because he was falsely charged with possession of marijuana, he served honorably on active duty from
7 May 1981 through 21 September 1983, and he also has a 25-year post-service record of hard work as a professional contractor and in helping his community.

2.  There is no evidence of record and, other than his contention in his application to this Board, the applicant provides no evidence to support the claim that he was falsely charged with possession of marijuana.  In fact, in his request for discharge for the good of the service, the applicant acknowledged his guilt.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  During the period of service under review, the applicant received NJP on at least two occasions, he was charged with an offense punishable by a bad conduct discharge, and he was reduced to private (E-1) prior to his discharge. Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

5.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

6.  Therefore, in view of all of the foregoing, there is an insufficient 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)                                         AR20130019026



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ABCMR Record of Proceedings (cont)                                         AR20130019026



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