RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060012554 


	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.




	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 a general discharge.

2.  The applicant essentially states that he knows he was wrong for using illegal drugs while in the service.  He also states that he has since turned his life around, and asks for forgiveness so that his life can be complete.  

3.  The applicant provides three third-party letters of support; an earnings details report; and a certificate of disposition from the Harris County, Texas District Clerk in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 7 October 1988, the date of his discharge from the Regular Army.  The application submitted in this case is dated 23 August 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.  The applicant’s military records show that he enlisted in the Regular Army on 3 October 1983.  He completed basic and advanced individual training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  After serving at Fort Sill, Oklahoma and in Germany, he was reassigned to Fort 
Sam Houston, Texas in February 1987.

4.  On 9 August 1988, charges were preferred against the applicant for offensives punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  His offenses included wrongfully using cocaine, being disrespectful towards a commissioned officer, impersonating a noncommissioned officer, being disrespectful in language and deportment toward a noncommissioned officer on three occasions, and failing to obey a lawful order.

5.  On 10 August 1988, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not coerced by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge(s) against him or (a) lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

6.  In his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offense(s) with which he was charged, any relevant lesser included offense(s) thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

7.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  The applicant elected not to submit a statement on his own behalf.  

8.  While the applicant’s separation packet was being processed up his chain of command, an additional charge was preferred against the applicant on 
16 September 1988 for another specification of wrongfully using cocaine.

9.  Although the applicant’s entire chain of command recommended disapproval of his request for discharge for the good of the service, and that his trial by court-martial was warranted, the proper authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10 on 
30 September 1988.  He also directed that the applicant’s discharge would be characterized as under other than honorable conditions, and that he be reduced to the rank of private/pay grade E-1.  On 7 October 1988, the applicant was discharged accordingly. 

10.  On 13 March 1996, the Army Discharge Review Board (ADRB) denied the applicant’s petition to upgrade his discharge.

11.  The applicant essentially stated that he knows he was wrong for using illegal drugs while in the service.  He also stated that he has since turned his life around, and asks for forgiveness so that his life can be complete.  

12.  The applicant provided three third-party letters of support, all of which essentially stated that they have known the applicant for years, and that he is an upstanding citizen who is a hard worker.  All three letters also essentially requested that the applicant be granted favorable consideration of his request to have his discharge upgraded.

13.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7b, 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.

16.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge.

2.  The applicant’s statement that he knows he was wrong for using illegal drugs while in the service was noted, as well as his statement that he has since turned his life around.  The third-party letters of support were also considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  It is clear that the applicant was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows a history of drug abuse and total disregard for military authority.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.


5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 13 March 1996.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 12 March 1999.  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

__JS____  ___DH __  ___JH___  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.




_______John Slone__________
          CHAIRPERSON




INDEX

CASE ID
AR20060012554
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070419
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19881007
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7400.0000
2.
144.7500.0000
3.
144.7600.0000
4.

5.

6.