RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  01 May 2008
	DOCKET NUMBER:  AR20080000382 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 a general discharge.

2.  The applicant states, in effect, that he is a productive member of society today, working towards his education.  He states that he has also attended drug and alcohol rehabilitation and, as a result, he would like a second chance at correcting his life.

3.  The applicant provides in support of his application, a copy of a Security Guard Training Certificate, dated 3 November 2006; a copy of a Security Guard Training Certificate, dated 11 December and 12 December 2006; a copy of a certificate showing his successful completion of the Office of Alcoholism and Substance Abuse Services Program; and copies of two letters from a Chemical Dependency Counselor/Health Coordinator, dated 9 October 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 6 February 1985, the applicant enlisted in the Army in Brooklyn, New York, for 3 years, in the pay grade of E-1.  He successfully completed his training as a cannon crewman.  He reenlisted in the Army on 24 August 1987 in the pay grade of E-4.

3.  The applicant went absent without leave (AWOL) on 6 December 1988 and he remained absent until he was apprehended by authorities and returned to military control on 11 December 1988.  Although the charge sheet is not on file in the applicant's records, the Report of Suspension of Favorable Personnel Actions dated 13 December 1988 shows that upon apprehension, the applicant was charged with AWOL, burglary with intent to commit larceny and attempt to commit larceny.  He was placed in pretrial confinement pending court-martial action.  The Checklist for Pretrial Confinement shows that the applicant was discovered in a female barracks room while two females were sleeping.  The witnesses woke to find the applicant standing in the room holding a billfold taken out of one of the female's pocketbooks.  The available records show that at the time of his apprehension, he was serving in the rank of sergeant (E-5).

4.  On 20 January 1989, the applicant 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.

5.  On 1 March 1989, the applicant's commanding officer (CO) recommended denial of the applicant request for discharge under the provisions of Army Regulation 635-200, chapter 10 and recommended that he be tried by a general court-martial.  The CO cited the seriousness of the offenses charged as a basis for his recommendation. 

6.  Based on the recommendation made by the applicant's CO, the Commanding General disapproved the applicant's 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 on 8 March 1989.

7.  Department of the Army Report of Result of Trial shows that the applicant was convicted by a general court-martial on 29 March 1989 of being AWOL and of false swearing.  He was sentenced to a bad conduct discharge, confinement for 8 months and a total forfeiture of pay and allowances.  However, as a result of a pretrial agreement, his discharge was to be suspended along with any confinement in excess of pretrial confinement served for a period of 2 years.

8.  The facts and circumstances pertaining to the applicant's discharge are not present in the available record.  His Certificate of Release or Discharge from Active duty shows that on 24 July 1989, the applicant was discharged, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – abuse of illegal drugs.  He had completed 4 years, 5 months and 14 days of net active service.

9.  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.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s contentions have been noted and he is commended for his post-service conduct.  However, his post-service conduct is not sufficiently mitigating to warrant the requested relief.  

3.  The applicant's records show that he was convicted by a general court-martial for being AWOL and for false swearing.  Shortly thereafter, he was discharged for abuse of illegal drugs.  It appears that he was discharged in accordance with the applicable regulation.  Considering the nature of his offenses and his acts of indiscipline, it appears that his discharge under other than honorable conditions appropriately characterizes his overall record of service. 

4.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.





      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000382



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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