RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 SEPTEMBER 2006
      DOCKET NUMBER:   AR20060004470


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Maria Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |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 an honorable or a general discharge.

2.  The applicant states that he was entrapped by a senior noncommissioned
officer (NCO) into committing an unknowingly illegal act.

3.  The applicant provides in support of his application, an affidavit
dated 19 March 2006, in which he contends that he went to an NCO club with
another Soldier after being told by the other Soldier that he had to meet
some guy, and that he and the other Soldier started drinking.  He states
that while walking with the other Soldier back to his vehicle, he was
handed a packet and was told to give it to the person who they went to
meet.  He states that the person handed him a $20.00 bill, and that as he
attempted to reenter the NCO club to give the money to the NCO, a large
group of military policemen took him into custody.  He states that both he
and the NCO were questioned at length, and that although he was threatened
with court-martial and told that he would not be charged if he would be a
witness for the United States against the NCO, he chose to exercise his
constitutional right by not providing any information against the NCO.  He
states that he was then sent to Germany and he returned to the United
States when he had 30 to 40 days remaining on his enlistment.  He states
that he was again threatened with court-martial charges and a bad conduct
or dishonorable discharge if he did not testify for the Government in their
case against the NCO, and that he again refused to testify.

4.  In the affidavit, the applicant states that as a result of his decision
to exercise his constitutional right not to testify, he was charged with
the sale of a non-controlled substance, which was an improper and
unconstitutional punishment.  He states that the non-controlled substance
was powdered aspirin as the NCO was fully aware that the other Soldier was
a Criminal Investigation Division undercover agent and he was being used as
a "dupe" to make the agent look foolish.  He states that after being
advised by his counsel, he entered into an agreement that he would request
a discharge under the provisions of Army Regulation 635-200, chapter 10,
and the he would be issued a general discharge and released for home at
once.  He states that at the time of the agreement, it was widely believed
that a general discharge would automatically convert to an honorable
discharge after 6 months.  He states that he accepted a deal for what



he believed would result in his being issued a general discharge, and that
it was much later after he sought assistance from persons familiar with
military discharges that he concluded that his discharge was under other
than honorable conditions.  He states that he was a young and
impressionable Soldier serving in the pay grade of E-2 trying to do a favor
for an NCO; that the contraband was a non-controlled substance; that he was
only charged because he chose to exercise his constitutional right to
remain silent; that he was improperly advised by his counsel of the
ramifications of a chapter 10 discharge; and that he was told that he would
be furnished a general discharge, which would be upgraded to honorable
within 6 months of issuance.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 January 1982.  The application submitted in this case
is dated 20 March 2006.

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 limitations 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.  On 21 September 1978, he enlisted in the United States Army Reserve in
Baltimore, Maryland, for 6 years, in the pay grade of E-1.  He successfully
completed his training as a lifting and loading equipment operator.

4.  Orders were published on 19 February 1980, ordering the applicant to
active duty with an effective date of 9 April 1980, and an active duty
commitment of 19 months and 17 days.  He was promoted to the pay grade of E-
2 on 9 April 1980.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on
30 May 1980, for failure to go to his appointed place of duty.  His
punishment consisted of a forfeiture of pay and extra duty.




6.  On 18 June 1980, NJP was imposed against him for failure to go to his
appointed place of duty on 2 June and 6 June 1980.  His punishment
consisted of a reduction in pay grade, restriction, and extra duty.

7.  On 30 June 1980, NJP was imposed the applicant for failure to go to his
appointed place of duty on 20 June and 21 June 1980; for disobeying a
lawful order from his superior NCO on 22 June 1980; and for being absent
from his unit on 25 June 1980.  His punishment consisted of a forfeiture of
pay, restriction, and extra duty.

8.  On 29 July 1980, NJP was imposed against him for failure to go to his
appointed place of duty on 5 July, 6 July, and 11 July 1980.  His
punishment consisted of restriction and extra duty.

9.  The applicant had NJP imposed against him again on 23 April 1981, for
failure to go to his appointed place of duty on 7 April and 14 April 1981.
His punishment consisted of extra duty.

10.  According to an Investigation Report that was completed by a CID
agent, on 20 August 1981, the applicant was detained by the military police
after he sold what was believed to be cocaine to a member of the Drug
Suppression Team (DST).  According to the agent, the member walked up to
the applicant and asked if he knew where he could get some drugs and the
applicant replied that he had some cocaine to sell.  The DST member agreed
to purchase some cocaine from the applicant and he was instructed to wait
in front of the club until he finished with another individual.  The CID
agent states that the applicant and the other individual entered a
privately owned vehicle with an E-4, and that it was suspected at that time
the applicant and the E-4 were selling some type of drug to the other
individual.  The CID agent states that once the applicant and the other
individual exited the vehicle, the other individual reentered the club and
the applicant motioned for the DST member to follow him.  According to the
CID agent, the applicant walked to the rear of a gym and met with the DST
member, and at that time, the applicant sold a piece of paper containing a
white powder purported to be cocaine to the DST member.  The applicant was
apprehended and a search of his person revealed the $20.00 Federal Reserve
Note, with the documented serial number that was used by the DST member to
make the purchase of the purported cocaine found on the applicant.  A
search of the E-4s privately owned vehicle revealed a brown paper bag
containing suspected marijuana.  The E-4 and the other individual were also
apprehended by the military police and all three individuals were
transported to the CID office.

11.  According to the CID agent, the applicant was advised of his legal
rights and he opted to waive them.  He admitted to selling the white powder
to the DST member; however, he related that the substance that he sold was
not cocaine, but aspirin.  The applicant denied trying to sell the
substance to the other individual; however, he admitted that the E-4 was
aware that he was selling the substance as cocaine.  The applicant denied
that the E-4 was assisting in the sell, and he refused to make a written
statement.

12.  On 15 October 1981, the applicant was notified that charges were
pending against him for stealing United States currency of a value of about
$20.00, the property of the United States.  He acknowledged receipt of the
notification, and after consulting with counsel, he submitted a request for
discharge under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service in lieu of trial by court-martial.  At the time
that he submitted his request for discharge, he indicated that he was
making this request of his own free will and that he had not been subjected
by any coercion whatsoever by any person.  He also indicated that he had
been advised of the implications attached to submitting the request for
discharge, and that by submitting the request for discharge, he
acknowledged that he was guilty of the charges against him or of a lesser
included offense therein contained which also authorized the imposition of
a bad conduct or dishonorable discharge.  He acknowledged that he
understood if his request for discharge was accepted, he may be discharged
under other than honorable conditions, and that he had been advised and
understood the possible effects and results of such a discharge.

13.  The appropriate authority approved the request for discharge on
18 December 1981.  Accordingly, on 11 January 1982, the applicant was
discharged, under other than honorable conditions, under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service in lieu of
trial by court-martial.

14.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitations.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contention that he was young and immature at the time
has been noted.  However, it is not sufficiently mitigating to warrant
relief.  The Board notes that the applicant was over 22 years of age at the
time that charges were preferred against him for his offense.  The
applicant has NJP imposed against him on five separate occasions prior to
the incident that led to charges being preferred against him.  Considering
his numerous acts of indiscipline, it does not appear that the type of
discharge that he received was too harsh.

4.  His contention that he was entrapped by senior noncommissioned officer
(NCO) into committing an unknowingly illegal act has also been noted.
However, it is unsupported by the evidence of record.  The records show
that at the time that the applicant was apprehended and advised of his
rights he admitted that the E-4 was aware that he was selling the substance
as cocaine; however, he denied that the E-4 was assisting in the sell of
the substance.

5.  Additionally, the evidence of record shows that the applicant was
advised of the effects of a discharge under other than honorable
conditions.  There is no evidence in the available records that supports
his contention that at the time that he submitted his request for discharge
he entered into an agreement that he would be issued a general discharge,
and in the absence of evidence to the contrary, it must be presumed that
what the Army did in his case is correct.

6.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 January 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 10 January 1985.  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

___MT __  ___CD __  ___EM  _  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.




                                  ______ Maria Troup______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004470                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19820111                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAP 10/FOR THE GOOD OF THE SRVS        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  689  |144.70000/REQ FOR DISCHARGE             |
|2.  706                 |144.7017/SERIOUSNESS OF OFFENSE         |
|3.  708                 |144.7100/CONDUCT TRIABLE BY CM          |
|4.  715                 |144.7200/LARCENY                        |
|5.                      |                                        |
|6.                      |                                        |


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