BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160001760 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: 6 July 2017 DOCKET NUMBER: AR20160001760 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: 6 July 2017 DOCKET NUMBER: AR20160001760 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 discharge under other than honorable conditions. 2. The applicant states: * his discharge was for an isolated incident which he vehemently denied * due process and his rights were ignored * his chain of command abused their power to ensure the worst possible outcome * he believed his general discharge would be changed to an honorable discharge after 6 months 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. On 11 August 1980, the applicant was appointed as a Reserve commissioned officer of the Army and he entered active duty on 15 September 1980. 3. A military police report, dated 28 May 1982, shows the applicant was observed acting in a suspicious manner. He was apprehended for suspected possession of marijuana and transported to the military police station where he was advised of his rights. Subsequently, a field test of the suspected marijuana residue met with positive results for the presence of tetrahydrocannabinol, the active ingredient in marijuana. 4. On 1 September 1982, court-martial charges were preferred against the applicant for three specifications: wrongfully possessing drug abuse paraphernalia, wrongfully using marijuana, and wrongfully possessing marijuana. 5. On 10 September 1982, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ) by a punitive discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to him. 6. On 13 September 1982 following consultation with legal counsel, he tendered his resignation from the Army for the good of the service under the provisions of Army Regulation 635-120 (Officer Transfers and Discharges), chapter 5. His request for resignation indicated he: * was not subjected to coercion with respect to his resignation * was advised of and fully understood the implications of this actions * was fully advised and counseled in this matter (his resignation) by Captain L____ M. J____ T____, U.S. Trial Defense Service (a member of the Judge Advocate General's Corps) * was offered an opportunity to present matters in explanation, mitigation, or defense of his case, and he elected to remain silent * shall be barred from all rights, based upon the period of service from which he was separated, under any laws administered by the Veterans Administration (currently known as the Department of Veterans Affairs) 7. His chain of command recommended approval of the resignation with the issuance of a discharge under other than honorable conditions. 8. On 29 October 1982, the Commanding General, 21st Support Command, recommended approval of the applicant's voluntary request for resignation and that his service be characterized as under other than honorable conditions. 9. A Department of the Army Ad Hoc Review Board convened and recommended that the resignation for the good of the service tendered by the applicant be accepted with discharge under other than honorable conditions. 10. On 18 November 1982, the Deputy Assistant Secretary of the Army (Department of the Army Review Boards and Personnel Security) approved that recommendation. 11. His record contains a Report of Mental Status Evaluation that shows his behavior was normal, he was fully oriented, his mood was unremarkable, his thinking process was clear with normal thought content, and his memory was good. He was psychiatrically cleared to understand and participate in the discharge/separation proceedings deemed necessary by the command. 12. The applicant was discharged on 20 December 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-120, chapter 5, with an under other than honorable conditions character of service. He completed 2 years, 3 months, and 6 days of net active service. 13. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-120 implements the statutory provisions of Title 10, U.S. Code, governing officer separations and provides policies and procedures for separating officers from active duty. Chapter 5 provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100 (Personnel Separations – Officer Personnel), paragraph 5-11a(7) (Misconduct Or Moral Or Professional Dereliction), prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100. The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions. DISCUSSION: 1. He was charged with wrongfully possessing marijuana, wrongfully possessing drug abuse paraphernalia, and wrongfully using marijuana, which were offenses punishable under the UCMJ with a punitive discharge. Certain discharges under the provisions of chapter 5 of Army Regulation 635-120 (currently Army Regulation 600-8-24 (Officer Transfers and Discharges)) are voluntary requests for discharge/resignation for the good of the service in lieu of trial by court-martial. 2. The applicant was not coerced into resigning and there is no evidence the command abused its discretion and/or power. The evidence of record shows he voluntarily, willingly, and in writing, requested resignation from the Army for the good of the service in lieu of trial by a general court-martial. He could have continued with court-martial proceedings where his innocence could have been established. 3. Rather than facing the consequences of a trial by court-martial, the applicant submitted his resignation for the good of the service in lieu of trial by court-martial. He had full knowledge of the consequences of this actions. 4. The U.S. Army does not now 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. 5. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001760 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001760 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2