BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140004014 


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.

2.  The applicant states:

	a.  details for the circumstances of his discharge that are archived in the "Facts and Circumstances" are totally false.  He was sitting at a bar eating dinner when a lady approached him.  They had a conversation and she asked him where she could buy hash.  He told her he didn't know.  She badgered him as he ate and as he was leaving he told her he had a small piece and she could have half of it.  She followed him to his car and through the passenger window he passed her what is recorded as .0025 grams somewhere in the records.  The lady tried to pay him, but he told her it was too small to charge anybody and she dropped a ten dollar bill on his car seat and left.   

	b.  there was never a "smoking device" found in the search of his apartment on 25 April 2008 as stated.  

	c.  the CID (U.S. Army Criminal Investigation Command) simply wanted him to work for them and do their work, but since he didn't, they trumped up the incident. 

	d.  his appointed Judge Advocate General officer said since he "confessed" to giving her the hash, he was not entrapped and he had no defense.

	e.  the original CID records would be nice to see if they exist.  There is a record/evidence stating $30.00 worth of hash, admittance to smoking, and a smoking device, which was used to deny him benefits.  All of that is untrue.

3.  The applicant provides a document pertaining to Department of Veterans Affairs benefits.

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 21 September 1972 for 3 years.  He completed his training and was awarded military occupational specialty 36K (field wireman).  On 30 July 1975, he was honorably discharged for immediate reenlistment.  He reenlisted on 31 July 1975 for 5 years.  He was promoted to the rank of staff sergeant on 17 December 1979.  On 30 November 1980, he was honorably discharged for immediate reenlistment.  He reenlisted on 1 December 1980 for 3 years.

3.  The Army Discharge Review Board (ADRB) proceedings state nonjudicial punishment (NJP) was imposed against him on 9 February 1981 for dereliction in the performance of his duties.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reduced to the rank of sergeant effective 9 February 1981.  

4.  His records are void of the specific facts and circumstances surrounding his discharge action.  

5.  On 8 July 1983, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 10 years, 9 months, and 18 days of creditable active service.  His service was characterized as under other than honorable conditions.

6.  In November 1988, the ADRB denied his request for an honorable discharge.
The ADRB proceedings state:

	a.  His charge sheet is not available.

	b.  On 9 June 1983, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He elected to make a statement in his own behalf.  (This statement is not available for review.)

	c.  On 22 June 1983, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

7.  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.  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.  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 contention that the facts and circumstances surrounding his offenses are totally false relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial/appellate process.  However, it appears he voluntarily requested discharge in lieu of trial by court-martial.

2.  His record of service during his last enlistment included one NJP and it appears drug offenses (by his own admission) for which a court-martial was recommended.  He was a sergeant.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140004014





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ABCMR Record of Proceedings (cont)                                         AR20140004014



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