IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140010660 


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, his undesirable discharge be upgraded.

2.  The applicant states, in effect:

* he did not have a hearing
* he did not go to jail
* they found 0.002 grams of "speed" (methamphetamine) in his wallet
* his captain did not like him and wanted him out
* they gave draft-dodgers amnesty, and he has not been in any trouble with drugs since
* he acknowledges he made a mistake when he was young
* he is seeking health benefits and the ability to obtain a gun and hunting license

3.  The applicant provides no additional evidence.

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 14 May 1975 at age 18.  After completing initial training, he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  Aside from training, his only assignment in the Army was to the 3rd Battalion, 32nd Armor Regiment in Germany.  The highest rank/grade attained was private/E-2.

3.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Badge with Grenade Bar.

4.  On 16 May 1976, an investigation was initiated by the U.S. Army Criminal Investigation Command (CID), Butzbach, Germany, with the applicant as the subject.  He was alleged to have been in possession of and distributed a controlled substance, Mandrax (a sedative-hypnotic drug used to treat insomnia, as a sedative, and muscle relaxant).

5.  Available records indicate the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on one occasion.  On 3 August 1976, he received NJP for two specifications of willfully disobeying the lawful command of a superior commissioned officer.

6.  His commander preferred court-martial charges on 29 September 1976.  The applicant was charged with the following specifications:

* on 6 August 1976, willfully disobeying the lawful command of a superior commissioned officer
* on 16 May 1976, wrongfully possessing a controlled substance, mandrax
* on 16 May 1976, wrongfully transferring a controlled substance, mandrax
* on 24 August 1976, wrongfully possessing a controlled substance, amphetamine

7.  On 13 October 1976, the applicant consulted with 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 an under other than honorable conditions discharge, and the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, he indicated he:

* had not been subjected to coercion with respect to his request for discharge
* understood if the 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
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

9.  On 5 November 1976, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an Undesirable Discharge Certificate.  On 20 November 1976, he was discharged accordingly.

10.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 6 months, and 7 days of total active service.

11.  On 6 September 1977, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB).  On 8 June 1978, the applicant was notified his application had been denied.

12.  On 24 May 1984, a second DD Form 293 was received from the applicant wherein he requested to appear before the board.  He was scheduled to appear before an ADRB Travel Panel on 22 January 1985.  He was informed that, because his case was previously reviewed by the ADRB, failure to appear as scheduled would result in his case being closed without further board action.  The applicant failed to appear before the panel and his case was closed accordingly.

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.  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, an under other than honorable conditions discharge 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 request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  Records show the applicant was 18 years of age at the time of his enlistment and age 19 at the time his commander initiated separation action under chapter 10, Army Regulation 635-200.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Accordingly, there is insufficient basis upon which to grant the applicant's request for relief.


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)                                         AR20140010660





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ABCMR Record of Proceedings (cont)                                         AR20140010660



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