IN THE CASE OF: BOARD DATE: 26 September 2013 DOCKET NUMBER: AR20130003083 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 change of his other than honorable conditions discharge to a general, under honorable conditions discharge. 2. The applicant states he signed a document in Germany specifying he would receive a general discharge. He received a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) from the National Personnel Records Center (NPRC) and the copy he received does not have his signature on it. 3. The applicant provides: * a letter from the Alameda County, Social Services Agency, Veterans Service Office, dated 4 February 2013 * DD Form 214 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 5 February 1974. He completed training and he was awarded military occupational specialty 76Y (Supply Specialist). 3. An Army Europe (AE) Form 1107 (Bar to Enlistment/Reenlistment), dated 8 November 1974, shows the applicant's immediate commander recommended he be barred from reenlistment because of possession of marijuana, displaying a lethargic appearance, maintaining his area of responsibility in the minimum of standards, and constant supervision in order to ensure minimal results. The applicant acknowledged he was provided a copy of the barring document, he was counseled and advised of the basis for the action, and he elected not to submit a statement in his own behalf. 4. On 13 November 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for possession of marijuana on 3 November 1974 on a military installation in Germany. 5. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, his record contains a DD Form 214 that shows he was discharged on 20 January 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with a character of service of under conditions other than honorable and issuance of a DD Form 258A (Undesirable Discharge Certificate). Item 29 (Signature of Person Being Separated) of his DD Form 214 shows his signature and the signature of the authorizing official. 6. There is no evidence of record and the applicant did not provide any evidence that shows he either signed a document or that he was told he was to be issued a general, under honorable conditions discharge. 7. 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service. b. Paragraph 3-7b 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he signed a document in Germany specifying he would be issued a general discharge. However, there is no evidence in his service records and he has not provided evidence that shows he was to be issued a general discharge. Evidence of record shows he was issued a DD Form 214 separating him under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. He authenticated his DD Form 214 by placing his signature in the appropriate block. A copy of his signed DD Form 214 from his official record will be provided with these Proceedings. 2. The applicant's record is void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. 3. In doing so, he would have waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service. 4. The applicant's record shows he received an Article 15 for possession of marijuana, he was barred from reenlistment, and he was charged with an offense that warranted his trial by court-martial. Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) AR20130003083 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130003083 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1