BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140012787 


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 under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states:

     a.  He was 19 years old when he was stationed at Fort Belvoir, VA.  Another Soldier in his office told him that he was going to bring some friends to his apartment.  They were looking for some marijuana and they wanted him to help them out.  He had never sold marijuana before but he did know where it was available.  His office mate showed up at his apartment with two other guys.  He gave them the marijuana and they gave him twenty dollars. 

      b.  About a week later he was walking on base and the same two guys that he had sold the marijuana to informed him that they were officers with the Criminal Investigation Division (CID).  They sat him on a bench and told him that he was going to be raped in prison.  Their goal was to retrieve any information that he may have had.  He was not served any papers or given any information as to what would happen next.

     c.  He continued to work and live in his apartment off base without any restrictions.  Two weeks later he was assigned a judge adjutant general (JAG) attorney.  He found out that she was very good friends with the two CID officers that had entrapped him with his office mate and it was evident at his pre-trial investigation.

     d.  He began receiving threats a couple of days after the CID officers sat him on the bench.  The threats were real enough that he requested to go to the brig for his safety.  While he was in the brig he stayed active and chose to work while he was there.  His mother has a heart attack during that time and he asked to go to her.  His request was denied so he asked for a UOTHC discharge so that he could be released.  He was able to see his mother who was still in attendant care when he returned home.

     e.  It is his belief that his office mate conspired with his CID friends to entrap him in order to help them get the marijuana.  He had an excellent record in the Army prior to that incident.  A few of the officers in his unit provided character references during the investigation.  

    f.  When he was denied the opportunity to visit his mother when she had a heart attack was the final straw for him.  He felt he had no choice but to sign the documents accepting the UOTHC discharge.  He completed his term of enlistment and during the discharge proceedings he was asked if he wanted to reenlist with no indication that he would get but a general discharge.  In a haste to return home he did not pursue the character of discharge change.

    g.  When he was diagnosed with hepatitis C due to the multi-use inoculation gun in basic training he felt that his UOTHC discharge was too high of a price to pay.  He has since had to have a liver transplant.  He receives treatments to maintain any quality of life and anti-rejection.  He also had 12 weeks of chemotherapy.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a self-authored statement.  

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 21 December 1972 at age 18.  After completing initial entry training, he was awarded military occupational specialty 71H (Personnel Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  Based on the available evidence the complete facts and circumstances of his discharge are not available for review with this case.  There are, however, sufficient records available to make a fair and impartial decision in this case.

4.  On 24 September 1974, the applicant was issued a DA Form 268 (Report for Suspension of Favorable Personnel Actions).  It shows that he was confined at the personnel confinement facility (PCF) at Fort Meade, MD pending investigation of criminal charges.

5.  On 6 December 1974, the applicant was discharged under the provisions of Army Regulation 635-200, separation program designator 246 with a UOTHC discharge.  His DD Form 214 for this period of service shows he completed 1 year, 11 months, and 13 days of total active service.  He was discharged in the rank/grade of private/E-1.  

6.  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.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

8.  Army Regulation 635-200, 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.

9.  Army Regulation 635-200, 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 contention that his record should be corrected by upgrading his UOTHC discharge was carefully considered and determined to lack merit.

2.  His contention that he was only 19 when his misconduct occurred is noted; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His health problems and concerns were noted; however, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for medical benefits.

4.  His record is void of the specific facts and circumstances surrounding his discharge.  However, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge for the good of the service, in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

5.  Based on his admission of selling drugs to undercover CID officers, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to relief requested.   








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)                                         AR20140012787





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ABCMR Record of Proceedings (cont)                                         AR20140012787



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