RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 August 2005
      DOCKET NUMBER:  AR20050001069


      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 honorable.

2.  The applicant states, in effect, he was accused of a crime that he did
not commit.  He contends he only gave his roommate a ride, he never took
money from anyone and he never gave any drugs to anyone.  He also contends
he was released after it was determined that he was charged in error;
however, he had already spent 75 days on restriction.  He points out that
two days prior to being detained for a crime that he did not commit, he was
awarded the Army Commendation Medal for outstanding performance of duty.
He goes on to state that when he was found innocent of the crimes he was
being investigated for he was offered the option to go to trial or take a
chapter 10 general discharge and just get out.  At this point he was
emotionally drained and he just wanted out.  He states he wants to clear
his name and correct the discharge.  He indicates he has been a model
citizen and he feels he served his country honorably.

3.  The applicant provides four character reference letters; an award
certificate for the Army Commendation Medal; a recommendation for a
teaching position; and a letter of acceptance.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 January 1988.  The application submitted in this case is
dated 18 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.  Having prior inactive service, the applicant enlisted on 9 January 1985
for a period of 3 years.  He was awarded military occupational specialty
13F (fire support specialist).

4.  On 21 September 1987, the applicant made a sworn statement and admitted
he had conspired with another Soldier to possess and distribute cocaine on
6 August 1987.  He also admitted that he had used cocaine and marijuana.
5.  On 29 September 1987, charges were preferred against the applicant for
distributing cocaine (1 specification) and using cocaine (three
specifications).  Trial by general court-martial was recommended.

6.  On 8 December 1987, 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 Under 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 Under Other
Than Honorable Discharge.  He elected not to submit a statement on his own
behalf.

7.  On 16 December 1987, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable
conditions on 7 January 1988 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service in lieu of court-martial.  He
had served
3 years and 5 months of total active service.

9.  The applicant provided four character reference letters from friends.
They attest the applicant is a model citizen, a dedicated father and
husband, a true patriot, and a proud American.

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 an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality
of the member’s service generally has met the standards of acceptable
conduct and performance of duty for Army personnel (emphasis added), or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

13.  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.  The applicant's contention relates to evidentiary and procedural
matters that could have been addressed and conclusively adjudicated in a
court-martial appellate process.  However, the applicant voluntarily
requested discharge in lieu of trial by court-martial.

2.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

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 submit a statement in which he could
have voiced his concerns and he failed to do so.  In addition, he had
previously made a sworn statement admitting he had conspired with another
Soldier to possess and distribute cocaine and that he had used cocaine and
marijuana.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  The applicant’s record of service included serious drug offenses that
led to referral of general court-martial charges.  As a result, his record
of service was not satisfactory and did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
the applicant's record of service is insufficiently meritorious to warrant
a general or honorable discharge.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 7 January 1988; therefore, the time for the
applicant to file a request for correction of any injustice expired on 6
January 1991.  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                 |AR20050001069                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19880107                                |
|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.                      |                                        |


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