IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140011369 


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 an upgrade of his discharge under other than honorable conditions to a general discharge.

2.  The applicant states:

	a.  He was accused of smoking marijuana, but he was not.  He was off base after work and he was told he was observed smoking.  He was not smoking marijuana and he volunteered to take a urinalysis that showed negative results.

	b.  The officer in charge initiated action to discharge him for "guilt by association," but it was never proven that he had anything to do with smoking marijuana.  This wrongful act by his superior cost him his career after 11 years and he feels that the injustice should be corrected.

	c.  He served his country for 10 years.  In 1987, he was involved in an incident in which he made a terrible mistake.  He was very young and immature.

	d.  He has learned his lesson that cost him his military career.  Since his release, he has married and has a wonderful family.

3.  The applicant provides one character-reference letter.



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 was born on 28 November 1959.  Having prior active service in the Regular Army from 13 July 1977 to 7 July 1980, he again enlisted in the Regular Army on 27 January 1981 for 3 years.  He completed his training and was awarded military occupational specialty (MOS) 11B (infantryman) and MOS 94B (food service specialist).  He was honorably discharged on 22 January 1984 for immediate reenlistment.  He reenlisted on 23 January 1984 for 4 years.

3.  In September 1986, nonjudicial punishment (NJP) was imposed against him for possessing and using marijuana.

4.  In February 1987, NJP was imposed against him for drunk driving.
 
5.  On 29 July 1987, court-martial charges were preferred against him for:

* committing carnal knowledge
* committing sodomy with a child under the age of 16 years
* wrongfully having sexual intercourse with a woman not his wife

6.  On 11 August 1987, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge under other than honorable conditions, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected to make a statement in his own behalf; however, his statement is not in his available records.

7.  On 28 August 1987, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

8.  On 14 September 1987, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 9 years, 7 months, and 13 days of creditable active service.  His service was characterized as under other than honorable conditions.

9.  He provided a character-reference letter from his pastor who attests:

* the applicant is a member of the church in good standing 
* he has become an integral part of the congregation
* he is part of the maintenance staff, usher board, men's ministry, and is involved in many other aspects of the ministry
* he has made great strides in his personal and spiritual life

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

11.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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 implies that he was discharged for smoking marijuana.  However, the evidence of record shows NJP was imposed against him for possessing and using marijuana in September 1986.  In July 1987, he was charged with committing carnal knowledge, committing sodomy with a child under the age of 16 years, and wrongfully having sexual intercourse with a woman not his wife.

2.  He contends he was young and immature.  However, age is not a sufficiently mitigating factor.  He was 21 years old when he enlisted in 1981.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, he had completed almost 3 years of active service in the Regular Army prior to his 1981 enlistment.

3.  The character-reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  His record of service during his last enlistment included two NJPs and serious offenses for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory.

6.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20140011369



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ABCMR Record of Proceedings (cont)                                         AR20140011369



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