2. The applicant requests that the records be corrected to reflect an honorable discharge under the provisions (UP) AR 635-200, chapter 9, alcohol and drug rehabilitation failure in lieu of AR 635-200, chapter 10, for the good of the service in lieu of court-martial.
3. The applicant claims that the commander violated the Uniform Code of Military Justice (UCMJ) by giving him an illegal order to not consume alcohol, which in effect, voided the court-martial charges, and, thereby, voids the chapter 10 discharge. He states that under a chapter 9 discharge he would have received an honorable discharge and would have been paid all pay and allowances including separate rations, and accrued leave due him at separation. He also contends that the government used limited use evidence in processing his chapter 10 discharge, because he told the commander he was under the influence of alcohol. Additionally, he maintains that he was the victim of religious discrimination.
4. On 30 March 1989 the applicant enlisted in the Army at the age of twenty-one and completed basic and advanced individual training as a computer system repairman. In April 1990 he was assigned to Germany and in May 91 he was referred to the Alcohol Drug and Abuse Prevention and Control Program (ADAPCP). On 8 January 1992 the applicants commander preferred court-martial charges for AWOL, for failure to obey orders (three specifications) and for being incapacitated for the proper performance of his duties. The applicant requested discharge UP AR 635-200, chapter 10 in lieu of court-martial. He was separated on 5 February 1992 with two years, 10 months, and 6 days active federal service and an under other than honorable conditions discharge.
5. On 4 January 1996 the Army Discharge Review Board (ADRB), in a unanimous decision, denied the applicants request for the change of reason and authority for discharge. However, the Board directed that his discharge be upgraded to general under honorable conditions.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the soldiers service is so meritorious that any other characterization would be clearly inappropriate.
7. A legal opinion was obtained from ARBA, Legal Advisor that opined that the applicant requested a discharge in lieu of court-martial. By doing so, the applicant admitted his guilt to all offenses and waived his right to contest the evidence against him. He also has not submitted any evidence to substantiate his position that the government used limited use evidence in processing his chapter 10. The order to not consume alcohol was a legal order. The applicant by his own statement says that the order was issued to reinforce his treatment in ADAPCP. The welfare of the soldier and his ability to perform were valid concerns of the commander. Additionally, the applicant waived his right to address the validity of the order by requesting a discharge in lieu of courts-martial. However, the applicant is entitled to basic pay for accrued leave as a result of the discharge upgrade by the ADRB.
CONCLUSIONS:
1. As a result of the upgrade of the discharge to General under honorable conditions by the ARDRB the applicant is entitled to receive basic pay for his accrued leave after all debts to the government are paid.
2. The applicants voluntary request for separation under the provision of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.
3. In order to justify further upgrade of his discharge the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the proceedings are in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
4. There is no evidence of record that the applicants commander approved his request for separation rations based on religious beliefs.
5. In view of the foregoing findings and conclusions, it would correct an error to amend the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by paying the applicant pay and allowances for any accrued leave due after all debts are satisfied.
2 That so must of the application as in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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