RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 March 2008
	DOCKET NUMBER:  AR20070015339 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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, in effect, that his discharge be upgraded to honorable.

2.  The applicant states, in effect, that he would like his file reviewed for he accepted the discharge because his attorney at the time thought it would be best for him.  He now states, in effect, that his decision at the time of his separation was not the right decision.

3.  The applicant did not provide any documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he enlisted on 10 September 1998.  He successfully completed basic combat and advanced individual training.  He was awarded the military occupational specialty (MOS) 19K (M1 Armor Crewman).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

2.  There is no record of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), in the applicant's military personnel file. 

3.  On 29 September 2000, the case of United States v. Private T____ M_____, was referred to a general court-martial.  The specifications were that the applicant had violated Article 112a of the UCMJ, specifically for wrongfully distributing an unknown quantity of cocaine, a Schedule I controlled substance, on or about 6 July 2000; for wrongfully distributing 1 gram of cocaine, a Schedule I controlled substance, on or about 5 July 2000; for wrongfully distributing approximately 1.8 grams of cocaine, a Schedule I controlled substance, on or about 14 June 2000; and for violating Article 86 of the UCMJ by being absent without leave (AWOL) from on or about 7 July 2000 to on or about 8 July 2000, when he was apprehended.  

4.  On 10 October 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  On 11 October 2000, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.

7.  On 19 October 2000, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged under other than honorable conditions.  This form further confirms that he completed a total of 2 years and 14 days of creditable active military service and that he had 26 days of lost time.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 21 September 2005, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper, equitable, and that the discharge was properly characterized as under other than honorable conditions.  

9.  Army Regulation 635-200 (Personnel Separation) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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.  

10.  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.


11.  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's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested a discharge under this provision on 10 October 2000.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's personnel file and discharge proceedings were reviewed at an ADRB records review board on 21 September 2005.  The ADRB upheld the discharge as proper and equitable.

3.  Based on his punitive offenses and 26 days of time lost, 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, the applicant is not entitled to a general discharge or an honorable discharge.

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

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JBG__  __RSV___  __DWS _  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




___James B. Gunlicks      __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.