IN THE CASE OF:	  

		BOARD DATE:	    13 October 2015

		DOCKET NUMBER:  AR20150003085 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, he served his country as the driver of a Howitzer and as the "number one man on the gun" until the time that his separation was delayed while out-processing the Army.  He further states his discharge was supposed to be upgraded two years after he was discharged.  

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 26 February 1980.  He completed training and he was awarded military occupational specialty           13B (Cannon Crewman).

3.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: 

* 7 April 1981, for three occasions of failing to go at the time prescribed to his appointed place of duty and for wrongful possession of marijuana
* 6 October 1981, for being drunk and disorderly

4.  Evidence shows the applicant was routinely counseled in reference to his behavior and duty performance.

5.  His record contains a letter, authored by the Clinical Director, Pinder Counseling Center, dated 29 October 1982, which states the applicant was referred to the Community Counseling Center (CCC) on 19 August 1982 by Captain B_______ because of an incident in a gasthaus involving drunkenness and fighting.  The applicant was enrolled in Track II.  Before his meeting, the applicant tested positive for tetrahydrocannabinol (THC).  Therefore, it was recommended he be separated from the service.

6.  The applicant's commander initiated a local Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment based on his record of NJP and duty performance.  The applicant submitted a statement in his behalf; however, the DA Form 4126-R (Bar to Reenlistment Certificate) was approved on 7 January 1983.

7.  On 10 January 1983, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty.

8.  On 17 January 1983, the applicant's immediate commander initiated separation action under the provisions of Chapter 9, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for alcohol and/or drug abuse.  His commander stated the reason for the proposed action was that the applicant was entered into the CCC program on 19 August 1982 for an incident involving alcohol, and dropped from the program on 28 September 1982 for a positive urinalysis reflecting THC.  The applicant had been given ample opportunity to rehabilitate himself and failed to do so.  His performance and conduct warranted elimination from the service.

9.  On 2 February 1983, the applicant's separation under the provisions of Chapter 9, Army Regulation 635-200, for alcohol and/or drug abuse was approved with the issuance of an honorable discharge certificate.

10.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, it appears court-martial charges were preferred against the applicant for possession and distribution of hashish.  His record contains a request for discharge for the good of the service, dated      4 May 1983, which indicates the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  It is presumed following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  

11.  In his request for discharge he acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He acknowledged he understood if his discharge request were approved, he may be deprived of many or all Army benefits.  He acknowledged he may be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant did not make a statement on his own behalf.

12.  The applicant's immediate and intermediate commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

13.  On 27 May 1983, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 8 August 1983, he was discharged accordingly.

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 3 years, 5 months, and 13 days of creditable active service with no lost time.
15.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 3-7a 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 states 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.

17.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered.

2.  His record appears to show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.
3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence 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.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told his discharge would be upgraded after two years. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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)                                         AR20150003085



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ABCMR Record of Proceedings (cont)                                         AR20150003085



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