BOARD DATE:  13 November 2014

		DOCKET NUMBER:  AR20140006231


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 upgrade of his undesirable discharge.

2.  The applicant states that everyone makes mistakes in life.  The punishment he received was too harsh as it was his first offense.  Since his discharge he has been a productive and responsible citizen.  

3.  The applicant provides letters from his sister and a church elder.  His sister attests to his character, integrity, and positive influence over her life.  The church elder states the applicant has been a member of the church for 11 months and has been faithful in his church attendance.

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 on 2 December 1971.  He held military occupational specialty 36K (Field Wireman).  

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Germany from May 1972 to June 1973.  He was awarded the National Defense Service Medal.  The highest rank he attained was private first class/E-3.  

4.  On 16 May 1973, charges were preferred against the applicant for violating a lawful general regulation by wrongfully possessing heroin.

5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charge against him and admitted he was guilty of at least one offense which authorized a punitive discharge.  He also acknowledged he understood he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate  which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement in his own behalf. 

6.  The separation authority approved the separation of 12 June 1973 and directed issuance of an Undesirable Discharge Certificate.

7.  On 25 June 1973, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had completed a 1 year, 6 months, and 24 days of total active service.  

8.  On 14 December 1987, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in his discharge.

9.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses under the Uniform Code of Military Justice.  A punitive discharge is authorized for failing to obey a lawful general regulation.

10.  Army Regulation 635-200 provides 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 at the time an undesirable discharge was 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 contends his punishment was too harsh as it was his first offense.  The evidence shows a punitive discharge is authorized for failing to obey a lawful general regulation. 

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offense and the circumstances of his separation and does not warrant an upgrade to honorable or general.

3.  The applicant's character reference letters he provided were reviewed; however, they are not sufficiently mitigating to warrant an upgrade of his discharge.  The applicant's claim of good post-service conduct is noted.  However, it does not sufficiently mitigate the misconduct that led to his discharge.

4.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either fully honorable or general.



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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20140006231



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