BOARD DATE: 07 September 2017 DOCKET NUMBER: AR20160004149 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160004149 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160004149 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 undesirable discharge to general under honorable conditions and restoration of his rank/pay grade to private first class (PFC)/E-3. 2. The applicant states the undesirable discharge reflects badly on him. The majority of his service was honorable. 3. The applicant provides an undated self-authored 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 enlisted in the Regular Army on 24 July 1972 for a period of 2 years. He was appointed to the rank/pay grade of PFC/E-3 effective 28 August 1973. 3. On 11 March 1974, charges were preferred against him for violating four lawful general regulations (selling marijuana (two specifications) and selling lysergic acid diethylamide (LSD) (two specifications) to undercover agents). 4. On 15 March 1974 after consulting with counsel, he submitted a request for 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 indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to submit a statement in his own behalf. In summary, he stated: * he has been a good Soldier for almost 2 years * he had no court-martials * he admits he has recently made mistakes * he was very lonely and got in with a group of people who lived a certain lifestyle * he was close to leaving the Army with benefits * he needs his benefits because he cannot pay for his education 5. On 3 April 1974, the separation authority approved his voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate with reduction to private/pay grade E-1. 6. On 4 April 1974, 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 1 year, 8 months, and 11 days of creditable active service. His service was characterized as under other than honorable conditions. 7. On 18 May 1979, the Army Discharge Review Board denied his request for a discharge upgrade to honorable. 8. He provided an undated self-authored letter stating: a. He served his country during the Vietnam era, he was not a draft dodger. He wanted to serve his country and be a good Soldier. He had 2 weeks to go before his discharge date. At that time, he was very homesick and made a foolish mistake. b. He went to the chaplain and asked for guidance and admitted what he had done. He wanted to do the right thing and the chaplain advised him to resign for the good of the service. He did. The chaplain said the Army would be lenient with him since he had such a short time left in the service. They both were shocked when he received an undesirable discharge. c. Since his discharge, he has worked as a truck driver and operated a business for 40 years. He raised a daughter and put her through college. His daughter is now a school teacher and he continues to serve his community. He is a devoted Christian and maintains his church's property. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (currently known as the Department of Veterans Affairs) 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 to an individual who was discharged for the good of the service. b. 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. c. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. DISCUSSION: 1. The applicant's post-service accomplishments are commendable. However, good post-service conduct alone is normally not a basis for upgrading a discharge. 2. 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 in conformance with applicable regulations. 3. His record of service included serious drug offenses (selling marijuana and LSD). 4. His request to restore his rank/pay grade to PFC/E-3 was noted. The evidence of record shows he was reduced in rank from PFC to private effective 3 April 1974 in connection with his discharge under other than honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004149 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004149 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2