BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140001487 


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 an honorable or a general discharge.

2.  The applicant states:

* He made a mistake when he was in his early 20's and he learned from his mistake
* He enjoyed his service in the Army and he was a good Soldier
* He performed all of his duties in a professional manner and he was meritoriously advanced out of "boot camp" for his excellent performance
* Toward the end of his enlistment he experimented with marijuana and he was administratively discharged
* Up to that point, his career was going great and he had full intentions of reenlisting and making the Army a career of at least 20 years
* He is truly sorry for making an error in judgment and using marijuana while on active duty in the Army
* He has been living with the mistake he made for over 37 years

3.  The applicant provides a self-authored statement and his 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 enlisted in the U. S. Army Reserve on 18 October 1973.  He enlisted in the Regular Army on 30 November 1973.  He completed training as a cook.

3.  The applicant accepted non-judicial punishment (NJP) on 19 September 1974 for uttering eight insufficient funds checks for a total of $140.00, for the purpose of exchange items and cash, and for failing to maintain sufficient funds in the bank.

4.  On 9 March 1976, he accepted NJP for failing to obey a lawful order.

5.  The facts and circumstances pertaining to the applicant's discharge are not available.  His DD Form 214 shows he was discharged on 27 January 1977, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service- in lieu of trial by court-martial.  He completed 3 years, 3 months, and 10 days of net active service this period.  He received an Under Other Than Honorable Condition Discharge Certificate.

6.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 (Personnel Separations) 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.  Paragraph 3-7a states 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.  Paragraph 3-7b states 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  The facts and circumstances pertaining to his discharge are not available.  The available records show he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  According to the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.

3.  Records show that the applicant was over 23 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not upgrade discharges based solely on the passage of time.

5.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  He has not shown error or injustice in the type of discharge he received.  In view of the foregoing, his request should be denied.



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)                                         AR20140001487



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ABCMR Record of Proceedings (cont)                                         AR20140001487



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