IN THE CASE OF:  	  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140009417 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, the punishment for his offenses was too harsh given his excellent record of service and the fact that possession of marijuana is only deemed a felony or is legal in some states.  He does not dispute his guilt but he is convinced that the punishment given exceeds the crime.  He was unaware he could appeal his discharge. 

3.  The applicant provides a one-page letter explaining his application.

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 6 October 1970 for a period of 3 years.  He completed his basic training at Fort Lewis, Washington and his advanced individual training as a medical specialist at Fort Sam Houston, Texas.

3.  On 25 May 1971, he was transferred to Germany and was advanced to the pay grade of E-4 on 28 June 1971.

4. On 18 January 1973, charges were preferred against the applicant for wrongfully attempting in the Netherlands, to introduce three kilograms, more or less, into a military unit for the purpose of sale, three specifications of wrongful possession of marijuana in the hashish form, and two specifications of wrongful introduction of marijuana into a military unit for the purpose of sale.  The charges and specifications occurred on three different dates.

5.  On 6 April 1973, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He elected not to submit a statement in his own behalf.

6.  On 23 April 1973, an additional charge of five specifications of failure to go to his place of duty during the period 5 April to 9 April 1973 were referred against the applicant.

7.  A Criminal Investigation Division (CID) Report contained in the applicant’s records indicates that a search of his room revealed 864 grams of pressed vegetable matter, suspected to be marijuana, and miscellaneous drug paraphernalia.

8.  On 26 April 1973, the applicant submitted a request to withdraw his request for discharge for the good of the service in lieu of trial by court-martial and insisted that he desired to have the charges brought to trial by court-martial.

9.  On 3 May 1973, the general court-martial convening authority (a major general) denied the applicant’s request to withdraw his request to withdraw his request for discharge for the good of the service in lieu of trial by court-martial.

10.  On the same date, the general court-martial convening authority approved his request for discharge and directed the applicant be furnished an Undesirable Discharge Certificate. 

11.  On 14 May 1973, he was discharged 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 2 years, 7 months, and 9 days of active service.

12.  On 20 April 1977, the applicant was notified that his request for an upgrade of his discharge under the Department of Defense (DoD) Special Discharge Review Program (SDRP) did not meet the criteria for consideration under that program.  He was also provided a DD Form 293 and was informed to submit it to the Army Discharge Review Board if he desired consideration for an upgrade of his discharge.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally issued.

	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 voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  


Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the serious nature of his offenses.  Additionally, the use of illegal drugs is still prohibited in the military services and is still viewed in the same manner. 

4.  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)                                         AR20140009417





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ABCMR Record of Proceedings (cont)                                         AR20140009417



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