BOARD DATE: 10 April 2018
DOCKET NUMBER: AR20180001245
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.
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.
BOARD DATE: 10 April 2018
DOCKET NUMBER: AR20180001245
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, in effect, he was a damn good Soldier who volunteered for service in Vietnam (i.e., during the Vietnam era). During a weekend pass, a person he was travelling with purchased marijuana and hashish. He was stupid for trying to hide it; however, when he asked for a hearing for some reason he signed papers for an immediate discharge from service. He knows he screwed up. He feels empty and to this day would go back into service and die for his country.
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 3 September 1974.
3. The applicant's DA Form 2-1 (Personnel Qualification Record), item 5 (Overseas Service), shows foreign service in West Germany from 27 February 1975 to 20 May 1977.
4. On 28 March 1977, court-martial charges were preferred against the applicant for, on or about 1 March 1977:
a. conspiring with another Soldier to unlawfully import marijuana and hashish into Germany from Holland, and in order to effect a conspiracy, placed marijuana in the latrine on Train Number D-223 and transported marijuana and marijuana in hashish form across the Holland-Germany border;
b. violating a lawful general regulation by wrongfully and unlawfully importing marijuana and marijuana in hashish form into the Federal Republic of Germany; and
c. wrongfully having in his possession 450 grams, more or less, of marijuana and 30 grams, more or less, of marijuana in hashish form.
5. On 5 April 1977, 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 Uniform Code of Military Justice, (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him. 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 (Personnel Separations – Enlisted Personnel), chapter 10.
6. 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. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions character of service. He stated that under no circumstances did he desire further rehabilitation or to perform further military service. A statement in his own behalf was submitted with his request; however, it is unavailable in the record.
7. On 29 and 31 March 1977, respectively, his intermediate commanders recommended he receive a trial by special court-martial empowered to adjudge a bad conduct discharge. However, on 9 May 1977, the applicant's chain of command recommended approval of the applicant's request for discharge recommending he be discharged under other than honorable conditions.
8. On 10 May 1977, 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 23 May 1977, he was discharged accordingly.
9. His DD Form 214 (Report of Separation 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 2 years, 8 months, and 21 days of total active service with no lost time. It shows he served overseas in U.S. Army Europe/Germany.
10. On 18 April 1980, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board determined the applicant was properly discharged and denied his request for an upgrade of the characterization of his discharge.
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.
1. The applicant's record shows he was charged with the commission of serious offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.
2. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. Notwithstanding his contentions, there is no evidence of procedural errors which may 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. The characterization of service he received was commensurate with the reason for his discharge.
_________ _______ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
_____x___ ___x_____ __x____ DENY APPLICATION
1. Board Determination/Recommendation
2. Evidence and Consideration