RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 July 2007
      DOCKET NUMBER:  AR20070000261


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. David K. Haasenritter         |     |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 be upgraded.

2.  The applicant states the judge at his court-martial was his battalion
commander.  His defense attorney asked the battalion commander to
disqualify himself without prejudice, but his commander refused and he did
not get a fair trial.  Both unit drug administrators were placed on leave
the day of his trial and did not testify.

3.  The applicant states that, of his 11 years of active duty, the first 10
years and 2 months were honorable.  One mistake in 10 years should not
condemn him or his family for life.  He admits he made a stupid mistake by
being so immature in the last months of active duty and readily apologizes.
 He promised himself, his family, and his Lord to do the right things the
remainder of his years.  After leaving the military, he worked in a company
that was a drug-free business that randomly tested for drugs.  In keeping
with his promise, he stayed negative on all drug tests.  He became involved
in the community.  He would like to be able to tell his children that he
served his country honorably.  Also, an upgrade could open some doors for
him and his family to some Department of Veterans Affairs benefits.

4.  The applicant provides a self-authored statement, dated 1 December
2006; his DD Form 214 (Certificate of Release or Discharge from Active
Duty); Good Conduct Medal orders; Mechanics Badge (Wheeled) orders; two
Certificates of Achievement; his DA Form 2-1, parts I and II (Personnel
Qualification Record); a character reference, dated 31 May 2006; a
memorandum dated 9 January 1990; an undated statement from the applicant;
and a DA Form 457 (Investigating Officer’s Report) with 26 pages of
attachments.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 January 1990.  The application submitted in this case is
dated                  13 December 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 enlisted in the Regular Army on 16 September 1978.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 62B (Construction Equipment Repairer).  He
was honorably discharged on 30 June 1985 for immediate reenlistment on 1
July 1985 for 6 years.  He was promoted to Sergeant, E-5 on 11 June 1986.

4.  On 31 October 1989, the applicant made a sworn statement.  He stated
that in the early morning hours of 1 October 1989 he noticed some women at
a house.  He saw a guy he had seen before, so he stopped and went inside
the house.  The people inside the house were passing a [marijuana] joint
around.  When the joint came to him, he took three to four hits off of it.
He then drank a beer and left.  On 3 October 1989, he took a urinalysis
test.  It took a while, but he gave a specimen.  That afternoon he was
called to take a second urinalysis.  While he was waiting to take it, he
was talking to Sergeant W___.  He asked Sergeant W___ if there was any way
he could get out of [the urinalysis].  During the conversation, money was
mentioned.  He then went with Sergeant First Class L___ to give the
specimen.  When asked by a military police investigator if he offered
$25.00 to Sergeant W___ to tamper with the specimen, the applicant answered
that he was “not positive but I might have.”

5.  On 15 November 1989, charges were preferred against the applicant for
wrongfully using marijuana and for bribery.

6.  On 5 December 1989, a formal investigation was conducted under the
provisions of Article 32, Uniform Code of Military Justice to investigate
the charges against the applicant.  The investigating officer (IO) had been
appointed by Lieutenant Colonel Y___, the applicant’s battalion commander.
The investigation was closed on 20 December 1989.  The applicant’s defense
counsel had requested that the IO remove himself as the IO based upon the
fact the IO had read the unsworn statement by Sergeant A___ and it would
somehow affect his determination and recommendations.  Defense counsel
objected to the IO’s determination that Sergeant A___ was not reasonably
available based upon the fact that Sergeant A___’s testimony would be an
integral part of the investigation. Defense counsel objected to the
consideration of any of Sergeant W___’s testimony based upon the fact that
Sergeant R___ had contacted Sergeant W___ and discussed his testimony with
him.  Defense counsel requested the IO dismiss the bribery charge.

7.  On 3 January 1990, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
  635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  The applicant was advised of the effects of a discharge under
other than honorable conditions and that he might be deprived of many or
all Army and Veterans Administration benefits.  He stated that he was
making the request of his own free will and had not been subjected to any
coercion whatsoever by any person.  He acknowledged that by submitting the
request for discharge he understood the elements of the offenses charged
and 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 submitted a statement in his own behalf.

8.  In his statement, the applicant stated, in part, that he was requesting
discharge because since charges were preferred against him life had been
extremely hard for his family and him.  His 11 year-old stepson was old
enough to recognize what was going on and it was affecting him in school.
He was also requesting discharge for the good of the service because he did
not want to risk receiving a federal conviction and a dishonorable
discharge.

9.  On 9 January 1990, the appropriate authority, Major General F___,
Commanding General, 6th Infantry Division and U. S. Army Garrison, Alaska,
Fort Richardson, Alaska approved the applicant’s request and directed he
receive a discharge under other than honorable conditions.

10.  On 26 January 1990, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with a discharge under other than honorable conditions.  He
had completed a total of 11 years, 4 months, and 3 days of creditable
active service with no lost time.

11.  The applicant provided a character reference from a fellow worker at
Wal Mart.  That individual noted that Wal Mart is a drug-free company.  He
stated the applicant has proven to be an asset to the store, he is in a
leadership position and he has been very dependable and honest.

12.  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 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.  A discharge under
other than honorable conditions is normally considered appropriate.
13.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that there were several irregularities at his
“trial”; however, he was never tried by court-martial.  He is confusing the
formal investigation into the charges against him with a court-martial
trial.

2.  It is acknowledged that the applicant’s defense counsel had requested
that the IO remove himself as the IO (not that his defense counsel asked
his battalion commander to disqualify himself as the “judge at his trial”)
and that at least one individual was not available to testify at the
hearing.

3.  However, the applicant voluntarily requested discharge for the good of
the service to avoid trial by court-martial.  He had acknowledged that by
submitting the request for discharge he was guilty of the charges against
him.  His request was administratively correct and in conformance with
applicable regulations.  There is no indication that the request was made
under coercion or duress, and he specifically stated that he had not been
subjected to any coercion whatsoever by any person.

4.  The applicant’s good post-service conduct is commendable; however, it
is not sufficient to warrant upgrading his under other than honorable
conditions discharge from the enlistment commencing on 1 July 1985.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 January 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         25 January 1993.  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

__jns___  __wb____  __dkh___  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 N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000261                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070718                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19900126                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]