RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 August 2005 DOCKET NUMBER: AR20050001013 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. James Vick Chairperson Mr. Ronald Weaver Member Mr. Robert Rogers Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to general. 2. The applicant states he received an honorable discharge for his first enlistment and received the Good Conduct Medal, a recommendation for award of the Army Commendation Medal which was downgraded to a certificate of appreciation, and a second certificate of appreciation. He contends he encountered difficulty during his second enlistment while serving in Germany and that youth, inexperience, and being overseas for the first time led to his difficulties with the military and his personal life. He points out that he has been out of the Army for 20 years and never been convicted of a felony or served time in jail. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); orders for the Good Conduct Medal; a DA Form 638 (Recommendation for Award), dated 29 September 1980; a disapproval for award, dated 23 March 1981; and two certificates of achievement. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 11 January 1984. The application submitted in this case is dated 11 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant was born on 3 March 1962. He enlisted in the U.S. Army Reserve (USAR) on 7 May 1979 for a period of 6 years. He was ordered to active duty on 27 July 1979 for training, completed One Station Unit Training in military occupational specialty 13B (cannoneer), and was released from active duty on 20 October 1979. He was ordered to active duty on 27 March 1980 for a period of 21 months and 6 days. On 20 July 1981, the applicant enlisted in the Regular Army for a period of 3 years. He transferred to Germany on 8 December 1981. 4. On 5 August 1983, nonjudicial punishment was imposed against the applicant for using marijuana in the hashish form. His punishment consisted of a reduction to E-3, a forfeiture of pay, restriction, and extra duty. 5. On 16 November 1983, charges were preferred against the applicant for using and distributing marijuana in the hashish form. Trial by special court-martial was recommended. 6. On 30 November 1983, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law. He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an Other Than Honorable Discharge. He elected not to make a statement in his own behalf. 7. On 13 December 1983, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions. 8. The applicant returned to the United States on 10 January 1984. 9. Accordingly, the applicant was discharged under other than honorable conditions on 11 January 1984 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had served 4 years and 9 days of creditable active service. 10. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge 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 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. 12. Army Regulation 635-200, paragraph 3-7, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. Age is not a sufficiently mitigating factor. Although the applicant was 17 years old when he enlisted in the USAR, he successfully completed One Station Unit Training and was almost 20 years old when he was transferred to Germany. 2. Good post service conduct alone is not a basis for upgrading a discharge. 3. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. He had an opportunity to make a statement on his own behalf at the time he requested discharge and failed to do so. 4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 5. Since the applicant's record of service included drug related offenses and one nonjudicial punishment for using marijuana, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge. 6. Records show the applicant should have discovered the alleged injustice now under consideration on 11 January 1984; therefore, the time for the applicant to file a request for correction of any injustice expired on 10 January 1987. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING JV_____ RW_____ RR______ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ___James Vick_________ CHAIRPERSON INDEX CASE ID AR20050001013 SUFFIX RECON DATE BOARDED 20050818 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19840111 DISCHARGE AUTHORITY AR 635-200 Chapter 10 DISCHARGE REASON For the good of the service BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.