APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable, that the reason for discharge stated on his DD Form 214, Certificate of Release or Discharge, be changed to completion of service instead of for the good of the service in lieu of court-martial, that his rank be restored and that he receive back pay and allowances and retirement benefits.
APPLICANT STATES: That in 1988 he appeared before an administrative separation board for misconduct which determined that the allegation that he had used marijuana could not be used against him because of improper coding and social security number recording errors with the chain of custody. He contends that a second administrative separation board in 1990 improperly used the same information against him.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 12 May 1971 and through a series of immediate reenlistments remained on active duty until he requested discharge. He was discharged on 13 July 1990 pursuant to Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. The highest grade he held was staff sergeant.
On 21 October 1988 the applicant appeared before an administrative separation board convened to determine whether he should be discharged from the Army for misconduct, specifically the use of illegal drugs. The evidence against him included a positive urinalysis for marijuana, for which he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, and disrespect toward his first sergeant.
The board found that the evidence of illegal drug use was flawed and the disrespect allegation was not substantiated. Therefore, that boards recommendation that the applicant be
retained on active duty was approved by the convening authority and all rights and privileges were restored to him.
On 27 April 1989 he accepted NJP for failing to go to his place of duty. The punishment imposed consisted of reduction to the grade of sergeant and forfeiture of $671.00 pay per month for 2 months. The punishment was suspended for 3 months at which time it was to be remitted if not sooner vacated.
On 21 December 1989 he accepted NJP for dereliction of duty. The punishment imposed consisted of reduction to sergeant and forfeiture of $335.00 pay per month for 2 months. The sentence was suspended for 3 months. The forfeiture portion of the suspension was vacated on 23 January 1990 after a urinalysis determined he had used marijuana.
On 16 January 1990 he accepted NJP for using marijuana. The punishment imposed consisted of reduction to specialist and forfeiture of $560.00 pay per month for two months and extra duty for 45 days.
Between 3 March 1990 and 3 April 1990 the applicant was accused of using marijuana which was detected by urinalyses. On 9 May 1990 he was charged with failing to report for duty and AWOL.
On 28 March 1990 he appeared before an administrative separation board for misconduct (use of marijuana). The board recommended he be discharged; however, final action on the boards recommendation was held in abeyance pending the referral of court-martial charges on all of the aforementioned offenses.
Charges were preferred against him on 15 May 1990 for the wrongful use of marijuana, AWOL for the period 9 through 15 May 1990 and disobeying a lawful order. Thereafter, he consulted with counsel and submitted a request for discharge in lieu of trial by court-martial.
On 5 June 1990 the appropriate authority approved the applicants request for discharge and directed that he be issued a discharge UOTHC.
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 UOTHC is normally considered appropriate.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicants contentions have been noted by the Board; however, they are not supported by either evidence submitted with the application or the evidence of record. The acts of indiscipline that formed the basis for the first administrative separation board in 1988 were not used during the 1990 board proceedings. In fact, the 1990 board action was held in abeyance while the applicant requested discharge instead of trial by court-martial. Since the 1990 board was never concluded, the issue of double jeopardy in that matter is moot.
2. His request for discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.
3. His voluntary request for separation, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. Considering the numerous acts of indiscipline, it does not appear that the discharge UOTHC was too severe.
4. In view of the foregoing, there appears to be no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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