RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012841 


	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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he was wrongfully punished.  He also states, in effect, that his wife was hanging around with the wrong people and he told her to leave.  She returned to the United States and he went to work at a night club to pay off their bills.  After some time, he found a new girlfriend and thought it was alright to move on since he was waiting for a divorce from his wife. He started taking No Doze to stay awake then someone offered him something else.  He took it once and told himself that this was wrong.  He gave what was left to a fellow Soldier who he later found out was working for the Criminal Investigation Division (CID).  He was confronted by his battery commander and knew his career was over.  He talked to all higher rank supervisors and was told to get a lawyer and fight this.  He was just waiting for an Article 15, but the battery commander wanted more.

3.  The applicant further states that his lawyer told him he had a 50/50 chance, to either go to jail or go home.  He chose the chapter 10 discharge because he was not going to jail and get a dishonorable discharge.  He left behind many friends and his career because of the wrongful punishment.  He was very upset with the Army because of what happened to him.  He is asking for an upgrade so he can have an Honorable Discharge to hang on his wall.  He knows he did something wrong, but the punishment was incorrect.  He wanted to make the military a career and could be retiring soon.  Now he has to worry about what to do next.  If he can't work anymore he will probably go back to Germany and get his fractured back fixed.  It has taken him almost 20 years to request an upgrade.

4.  The applicant provides copies of his training certificates, eight witness questionnaires, and his DD Form 214 (Certificate of Release or Discharge from Active Duty), in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 February 1987, the date of his discharge.  The application submitted in this case is dated 4 September 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 30 September 1985, in pay grade E-1, for 3 years.  He completed basic combat and advanced training and was awarded military occupational specialty 13B, Field Artillery Crewman.

4.  The applicant departed for Germany on 23 January 1986 and arrived on 29 January 1986.  He was promoted to pay grade E-2 on 18 June 1986, with a date of rank of 30 March 1986.

5.  A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 3 October 1986, was initiated because the applicant was pending court-martial for drug distribution.

6.  The applicant's commander submitted a DA Form 4187 (Personnel Action), dated 8 October 1986, to block the applicant's promotion to pay grade E-3.  The commander stated that the applicant's duty performance had been such as not to warrant promotion consideration at that time.

7.  On 29 October 1986, a final CID Report of Investigation disclosed that the applicant distributed 0.014 grams of Amphetamines to a CID source as a measure of good faith, with the understanding that the source would purchase a larger quality at a future date.  The estimated street value of the Amphetamines was $400.00.  Further, by the applicant's own admission, he admitted to the possession and use of hashish on previous occasions.  Attached to this report were a waiver of certification and statement of the applicant, field test analysis of suspected controlled substance, the crime lab report, the laboratory report, and the evidence custody document. 

8.  On 18 November 1986, the applicant's commander recommended the applicant be tried by general court-martial.  

9.  On 18 November 1986, a Charge Sheet (DA Form 458) was prepared by the Commander, B Battery, 3rd Battalion, 37th Field Artillery Brigade, APO New York. The applicant was charged with one specification of wrongfully distributing 0.014 grams, more or less, of amphetamine.  

10.  On 1 December 1986, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if an UOTHC discharge was issued.  He also acknowledged that trial by court-martial under the circumstances could lead to a bad conduct discharge or dishonorable discharge, and the effect of this request for discharge, and the rights available to him.  He waived his rights and elected not to submit a statement in his own behalf. 

11.  On 3 December 1986, the applicant's commander recommended approval of the applicant's request to be discharged for the good of the service under the provisions of Army Regulation 635-200, Chapter 10, with the issuance of an UOTHC discharge.

12.  On 5 December 1986, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an UOTHC discharge be issued and that he be discharged in pay grade E-1. 

13.  The applicant was discharged on 6 February 1987, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial.  He was credited with 1 year, 4 months, and 7 days of total active service.

14.  The applicant submits training certificates that show he completed training in February and June of 1986.  He also submits eight witness questionnaires that appear to have been a part of his CID investigation.

15.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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 trial by court-martial.  A discharge UOTHC was normally considered appropriate.  

17.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

18.  Army Regulation 635-200, chapter 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

2.  The applicant's contentions have been noted; however, his records clearly show that charges were brought against him for the wrongful distribution of an amphetamine. The evidence shows the applicant's commander recommended he be tried by general court-martial and the applicant requested discharge for the good of the service, in lieu of trial by court-martial.  He waived his opportunity to appear before a general court-martial to prove his innocence if he felt he was being wrongfully punished.

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable. 

4.  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.

5.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 February 1987, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 February 1990.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge due to the fact that he would like to have an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tmr___  ___rn ___  __J_____  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 T. Meixell____
          CHAIRPERSON


INDEX

CASE ID
AR20060012841
SUFFIX

RECON

DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19870206
DISCHARGE AUTHORITY
AR635-200,Chapter10, Good of the Service -
DISCHARGE REASON
In Lieu of Trail by Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.