IN THE CASE OF: 

		BOARD DATE:	    17 June 2014

		DOCKET NUMBER:  AR20130019063 


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 an honorable discharge.

2.  The applicant states he believes his discharge is unjust because he served honorably and there is nothing in his military records that suggest otherwise.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 148-27
* Discharge Certificate

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 11 September 1979.

3.  His record contains DA Forms 268 (Report of Suspension of Favorable Action), dated:

   a.  27 January 1982, that shows he was pending trial by Special Court-Martial empowered to adjudge a Bad Conduct Discharge for possession and sale of marijuana.  

   b.  26 March 1982, that states the applicant was sentenced by a Special Court-Martial on 25 March 1982, for violation of Article 134 of the Uniform Code of Military Justice (UCMJ) for the sale, possession, and transfer of marijuana.

   c.  24 May 1982, that states the applicant was under confinement by military authorities.

4.  The complete facts and circumstances surrounding the applicant's discharge are not available for review; however, the evidence shows on 15 July 1982 the applicant consulted with legal counsel and he was advised of the basis for a contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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.

5.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or 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 and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.

6.  On 16 July 1982, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 5 August 1982, the applicant was accordingly discharged.
7.  The DD Form 214 he was issued shows he was administratively discharged due to conduct triable by court-martial.  The form further confirms he completed a total of 2 years, 10 months, and 25 days of net active service during the period with no lost time.

8.  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.

9.  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, 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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge action.  However, it appears that he was charged with the commission of offense(s) 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.  In doing so, he would have waived his opportunity to appear before a court-martial.  It is presumed that 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 appears to accurately reflect his overall record of service.

3.  The applicant's discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The evidence indicates he was involved in the possession, sale, and transfer of marijuana, and subsequently requested an administrative discharge in lieu of trial by court-martial.  Therefore, based on his record of indiscipline, the applicant's service does not merit an upgrade to his 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)                                         AR20130019063



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ABCMR Record of Proceedings (cont)                                         AR20130019063



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