IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140001620 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states his discharge should be upgraded because the offense he committed was not serious enough to warrant an under other than honorable conditions discharge due to the length of his service and the nature of the offense.

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 enlisted in the Regular Army on 25 August 1975.  He reenlisted on 16 March 1979 in the rank/grade of sergeant/E-5.  He was assigned to Headquarters and Headquarters Company (HHC), 4th Battalion, 3rd Brigade, 2nd Infantry Division on 17 February 1981.

3.  On 14 April 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly in public in Korea.

4.  On 16 December 1981, court-martial charges were preferred against him for one specification each of wrongfully selling marijuana and wrongfully possessing marijuana.

5.  On 5 January 1982, he 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 or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

6.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood 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.

7.  In a statement he submitted on his own behalf, dated 5 January 1982, he stated he was guilty of the wrongful possession and sale of marijuana and he was voluntarily requesting the discharge.

8.  On 6 January 1982, his immediate commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  His senior commander subsequently recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 8 January 1982, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 22 January 1982, he was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 2 years, 10 months, and 7 days of net active service during this period of service.

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

12.  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 included 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.  An under other than honorable conditions discharge was normally considered appropriate.

13.  Army Regulation 635-200, 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.

14.  Army Regulation 635-200, 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 evidence of record confirms the applicant was charged with the commission of an offense 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. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  The applicant contends his discharge should be upgraded because the offense was not serious enough to warrant a discharge under other than honorable conditions.  However, contrary to his contention, the possession of and sale of marijuana were at the time and still are very serious Federal offenses in the Army. 

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140001620





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ABCMR Record of Proceedings (cont)                                         AR20140001620



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