IN THE CASE OF:	   

		BOARD DATE:	    29 January 2015

		DOCKET NUMBER:  AR20140010346 


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 undesirable discharge (UD) to an honorable discharge.

2.  The applicant states he was young and did not understand the charges.  He was charged with possessing 12 cartons of Winston cigarettes on 10 February 1970 and marijuana on 13 April 1970.  He would like to be able to receive his benefits.

3.  The applicant provides copies of the following:

* DD Form 4 (Enlistment Contract – Armed Forces of the United States) 
* Standard Forms (SF) 88 (Report of Medical Examination) and 89 (Report of Medical History)
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2658 (Health Record – Abstract of Service)
* three DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Special Court-Martial (SPCM) Orders Number 2 and 3
* two DA Forms 2823 (Witness Statement)
* two DA Forms 2800 (Criminal Investigation Division Report of Investigation)
* DD Form 497 (Confinement Order)
* Special Orders (SO) Number 181
* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) 
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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) at 19 years, 6 months, and 12 days, in pay grade E-1, on 3 November 1967, for 3 years.  His SF 88 and 89 shows he was found qualified for enlistment.  At the time of his enlistment, he was 19 years and 6 months of age.  He was awarded military occupational specialty 82C (field artillery surveyor).  He was advanced to pay grade E-3 on 21 May 1968.  He served in Vietnam from 23 April 1968 through 16 April 1969.  

3.  On 21 March 1969, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for being in an off-limits area.  His punishment included a reduction to pay grade E-2, a forfeiture of pay, an admonishment, and 14 days of extra duty.

4.  He was again advanced to pay grade E-3 on 30 October 1969.  He again served in Vietnam from 16 October 1969 through 15 October 1970.

5.  His records also contain and he also provided copies of the following:

   a.  A DA Form 2627 wherein on 12 January 1970 he accepted NJP under Article 15, UCMJ, for sleeping on guard duty.  His punishment included a suspended reduction to pay grade E-1, a forfeiture of pay for 2 months, and 45 days of extra duty.  

   b.  SPCM Order Number 2, dated 16 February 1970, wherein on 29 January 1970 he was convicted of one specification of wrongfully possessing marijuana.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay for 3 months, and confinement at hard labor for one month.  
   
   c.  SPCM Order Number 3, dated 17 February 1970, wherein the unexecuted portion of his sentence to confinement was ordered duly executed.

   d.  Two DA Forms 2823, dated 19 and 21 February 1970, respectively, wherein a military policeman attested to finding marijuana on the applicant after a search of his person.  The second military policeman stated the applicant was advised of his rights, declined to make a statement, and requested legal counsel.

   e.  A DA Form 2800, dated 24 February 1970, which shows an investigation was initiated against the applicant for wrongfully possessing marijuana.

   f.  A DA Form 2617 wherein on 23 March 1970 he accepted NJP under Article 15, UCMJ, for possessing 12 cartons of Winston cigarettes.  His punishment included 14 days of extra duty.  

   g.  A DD Form 497, dated 15 April 1970, which shows he was placed in pretrial confinement.

   h.  A DA Form 2800, dated 16 April 1970, which shows an investigation was continued against the applicant for wrongfully possessing marijuana.

6.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  SO Number 181, dated 30 June 1970, discharging the applicant effective the same day.

   b.  A DD Form 214 which shows he was discharged in pay grade E-1 on 30 June 1970, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10, for the good of the service.  He issued an UD Certificate.  He was credited with completing 2 years, 7 months, and 28 days of active service.

7.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitation for an upgrade of his discharge.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions (UOTHC), the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UD would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances surrounding his discharge; however, it appears after court-martial charges were preferred against for violating the UCMJ and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  

2.  His contention that he was young at the time was carefully considered.  He was 19 years, 6 months, and 12 days of age at the time of his enlistment in the RA.  It appears, he was almost 21 years of age at the onset of his misconduct.  There is no evidence he was any less mature than any other Soldier who successfully completed their period of enlistment.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his UD.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a fully honorable or a general discharge.

4.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.
5.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits from any government agencies is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for benefits.

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)                                         AR20140010346





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ABCMR Record of Proceedings (cont)                                         AR20140010346



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