IN THE CASE OF:  

		BOARD DATE:  31 March 2015	  

		DOCKET NUMBER:  AR20140014214


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 discharge to an honorable discharge.

2.  The applicant states his under other than honorable conditions discharge should be upgraded to an honorable discharge.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 Delayed Enlistment Program of the U.S. Army Reserve on 19 April 1978.  He enlisted in the Regular Army on 22 August 1978.  After completing basic combat and advanced individual training, he was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 30 May 1979, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties.  

4.  On 16 January 1980, court-martial charges were preferred against him for a specification of wrongful possession of marijuana, a specification of wrongful sale of marijuana, and a specification of wrongfully and unlawfully offering a sum of money to a military policeman, with the intent to influence his actions while taking the applicant into custody, on or about 31 October 1979.  These charges resulted from a U.S. Army Criminal Investigation Command (CID) investigation. 

5.  On 3 March 1980, 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 acknowledged:

	a.  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.  

	b.  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 Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He initialed the sentence indicating he understood he could elect or decline to submit statements on his own behalf; however, he did not indicate his election by circling the appropriate response. 

7.  On 5 March 1980, the immediate and intermediate commanders recommended disapproval of his request for discharge for the good of the service and recommended a trial by court-martial.  On 10 March 1980, his senior commander recommended approval of his request.  

8.  On 12 March 1980, the separation authority approved the applicant's request for discharge and directed his reduction to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

9.  On 25 March 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 1 year, 7 months, and 4 days of net active service.  

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

11.  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 request for an upgrade of his under other than honorable conditions discharge to an honorable discharge was carefully considered.

2.  His record of indiscipline includes nonjudicial punishment and court-martial charges for violations of the UCMJ involving the transfer and sale of marijuana and the wrongful and unlawful offering of a sum of money to a military policeman with the intent to influence his actions.  

3.  The evidence of record shows the applicant 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.  The evidence further 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 his rights were fully protected throughout the separation process.

4.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.

5.  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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20140014214



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