IN THE CASE OF:  

		BOARD DATE:  26 February 2015  

		DOCKET NUMBER:  AR20140010986


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 under other than honorable conditions discharge to honorable with all benefits.

2.  The applicant states:

* at the time he received his discharge, he was told by a Judge Advocate General (JAG) lawyer that his discharge would turn into an honorable discharge with all benefits 
* many discharges were improperly filed and handled during this time
* he has tried three previous times to get an upgrade with all Department of Veterans Affairs (VA) benefits
* at the time he received his discharge, he was still in the "stockade" and his JAG lawyer did everything
* he was taken from the "stockade" and ordered off Fort Campbell, Kentucky with only his discharge packet and his travel pay – he was told not to come back or he would be prosecuted to the fullest extent of the law
* his discharge was based on one isolated incident in almost 3 years
* he made a mistake and was young and that fact should not be held against a person forever
* since his mistake he has not been in trouble with the law, have raised children and grandchildren and he is still proud of his service  

3.  The applicant provides eight character references and a New Jersey Department of Education - Criminal History Review Unit - Application Authorization and Certification document.  
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 13 June 1978.  He completed initial entry training and was awarded military occupational specialty 64C (Motor Transport Operator).   

3.  His record shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following three occasions:

	a.  on 17 October 1978, for failure to go at the time prescribed, to his appointed place of duty, to wit: muster formation;

	b.  on 1 May 1980, for wrongful possession of some amount of marijuana; and 

	c.  on 5 November 1980, for wrongful possession of some amount of marijuana.
	
4.  On 13 February 1981, court-martial charges were preferred against him based on two U.S. Army Criminal Investigation Command reports for two specifications of wrongful transfer of marijuana and two specifications of wrongful sale of marijuana, on or about 10 and 13 January 1981.  

5.  On 26 February 1981, he consulted with legal counsel and he 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 that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and he would be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge and he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.

7.  On 30 March 1981, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  

8.  On 1 April 1981, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct triable by court-martial, and he was given an under other than honorable conditions character of service.  

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

10.  The applicant provides eight third-party letters of character reference/support from family members, friends, co-workers, and other community associates.  Each letter attests to his strength of character, professionalism in the performance of his duties, and general willingness to help others in their daily struggles; however, none of the letters addresses his performance of duty while in an active duty status or the circumstances that led to his discharge.

11.  He further provides a New Jersey Department of Education - Criminal History Review Unit - Application Authorization and Certification document.  The purpose of this document is not clear. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 under other than honorable conditions is normally considered appropriate.

   a. 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.

   b. Paragraph 3-7b provides that an under honorable conditions (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 contentions are noted.  His request for an upgrade of his under other than honorable conditions discharge to an honorable discharge with all benefits was carefully considered.

2.  His record of indiscipline includes nonjudicial punishment on three occasions and court-martial charges for the transfer and sale of marijuana.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a court-martial that could have resulted in a punitive discharge.  

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  His record shows he was over 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  His overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.  
    
6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits or based on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.      

7.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20140010986



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