IN THE CASE OF:	  

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130021759 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states he is requesting an upgrade of his discharge for medical purposes.

3.  The applicant provides:

* letter from the National Personnel Records Center (NPRC), dated 1 August 2013
* letter from Army Review Boards Agency (ARBA), dated 6 September 2013
* DD Form 214 (Report of Separation 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.  The applicant was inducted into the Army of the United States on 29 August 1972.

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 1 May 1973, for dereliction of duty
* on 22 June 1973, for using disrespectful language to a superior noncommissioned officer and disobeying an order
* on 18 July 1973, for being incapacitated due to indulgence in intoxicating liquor

4.  On 30 October 1973, the Judge, County Criminal Court at Law Number 4, Houston, TX, advised the staff judge advocate, Fort Sam Houston, TX, that the applicant had been charged with misdemeanor possession of marijuana and that a court date was scheduled for 20 November 1973.  

5.  A Laboratory Report, Number 73-16,812, undated, from the U.S. Army Criminal Investigation Command, Fort Gordon, GA, shows that one plastic bag containing vegetable matter and one plastic vial containing one cigarette rolling paper, one piece of cotton, and vegetable matter was obtained from the applicant and tested.  Examination of the evidence revealed the presence of marijuana and tetrahydrocannabinol.

6.  On 8 February 1974, court-martial charges were preferred against the applicant for:

* on or about 22 November 1973, possessing 39.26 grams, more or less, of marijuana
* on or about 29 November 1973, possessing 11.52 grams, more or less, of marijuana
* on or about 3 December 1973, being absent without leave (AWOL) until on or about 11 December 1973
* on or about 9 January 1974, failing to go at the prescribed time to his appointed place of duty
* on or about 23 January 1974, being AWOL until on or about 28 January 1974

7.  On 20 February 1974, the applicant consulted with legal counsel who advised him 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 the procedures and rights available to him.  Following consultation with legal counsel, he provided statements in his own behalf and requested a general discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he was guilty of the charge against him or of a lesser-included offense
* he understood that if his request were approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood that he could expect to encounter substantial prejudice in civilian life

8.  On 20 February 1974, the applicant also provided the following additional statements, in part:

* it made no difference what type of discharge he received
* he did not wish to be rehabilitated within the military or in any other unit or Government organization
* he had a record of drug abuse related problems concerning marijuana; however, he always tried to do his best to be ready for work and complete the jobs given to him

9.  On 1 March 1974, an additional charge was preferred against the applicant for violating a lawful order by possessing .45 grams, more or less, of marijuana on or about 31 January 1974.

10.  On 6 March 1974, the applicant underwent a mental status evaluation which shows he was psychiatrically cleared for any administrative action deemed appropriate by his command, including separation under chapter 10 of Army Regulation 635-200.

11.  On 12 March 1974, the separation authority approved his request for discharge, directed the issuance of an Undesirable Discharge Certificate, and directed his reduction to private/E-1.

12.  On 15 March 1974, the applicant was discharged as directed.  His DD Form 214 shows he was credited with 1 year, 6 months, and 17 days of active military service.  He had 19 days of lost time.

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

14.  The applicant provided a copy of his DD Form 214, a letter from NPRC that shows he received a certified copy of his records, and a letter from ARBA advising him he had exceeded the statutory period of appeals for the Army Discharge Review Board.

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

	a.  Paragraph 1-7, in effect at the time, stated the type of discharge and character of service would be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier was being separated.

	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. 

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He 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.  The available evidence clearly shows a period of service marred with misconduct from the beginning and continued throughout his military service.  He had two instances of AWOL, two instances of possessing drugs, and three instances of NJP.

3.  He elected to be AWOL and possessed drugs on more than one occasion.  Also, upon preference of court-martial charges against him, he consulted with counsel.  His options were to face trial by court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose discharge.  

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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 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)                                         AR20130021759



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ABCMR Record of Proceedings (cont)                                         AR20130021759



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