BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140008015 


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, that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states, in effect, that he was pushed through the process and given a discharge under Army Regulation 635-200, chapter 10, with a separation program designator code of JFS.  There was no trial and he was never convicted of anything or proven guilty of any charges.  He was even told that he was not guilty.  He tried to appeal after being discharged, but he was told it could not be changed.  That was the only answer he ever received.  It has been a long time and he just wants his record completely corrected.

3.  The applicant provides no additional documentation.

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.  On 8 November 1976, the applicant enlisted in the Regular Army.  He completed his initial training as a field artillery surveyor.

3.  The applicant accepted the following nonjudicial punishment (NJP):

* on 10 January 1977, for leaving his appointed place of duty without authority
* on 21 January 1977, for being disorderly in a public place while in uniform

4.  On 28 October 1978, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 by:

* possessing .02 grams, more or less, of heroin
* wrongfully selling heroin

5.  On or about 9 February 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

7.  In his request for discharge, the applicant indicated that he understood by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 21 February 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).  On 13 March 1979, the applicant was discharged accordingly.  He had completed a total of 2 years, 
4 months, and 6 days of creditable active service.

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

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

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC 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 (emphasis added), 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.  

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 134 for possession of heroin was 5 years in confinement and a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his UOTHC discharge should be upgraded to honorable because he was never convicted of anything.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily admitted to being guilty of the charge, or of a lesser included charge.  He requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Based on his record of NJP and charges for a serious offense, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  There is no evidence of an error or injustice in the applicant's case.  Accordingly, the applicant's 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)                                         AR20140008015



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ABCMR Record of Proceedings (cont)                                         AR20140008015



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