IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080005754 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his UOTHC (under other than honorable conditions) discharge be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that his service prior to the incident that led to his discharge as excellent.  He believes that this service warrants an upgrade to a GD. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge). 

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.  The applicant entered active duty on 8 July 1980, completed training, and was awarded the military occupational specialty (MOS) 05B (Radio Operator).  

3.  His first assigned duty station was with Headquarters and Headquarters Company, 3rd Battalion, 19th Infantry Regiment, Fort Stewart, Georgia and then with Headquarters and Headquarters Battery, 3rd Battalion, 7th Air Defense Artillery Regiment in Germany.

4.  While serving in Germany the applicant came under investigation by the CID (Criminal Investigative Division).  The CID report states that the applicant sold 1.5 grams of hashish to a CID confidential source on 20 December 1982.  

5.  On 4 February 1983, court-martial charges were preferred for the possession and distribution of hashish.  

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

7.  The applicant's entire chain of command recommended that he be separated with an UOTHC.  The discharge authority approved the applicant's request and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

8.  The applicant was discharged on 18 April 1983 in pay grade E-1.  His DD Form 214 shows that he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10, with an UOTHC.  He had 2 years, 9 months, and 11 days of creditable service. His authorized awards are listed as the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars.

9.  On 6 August 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his characterization of service and reason for separation.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  In pertinent part it states at:
	a.  Paragraph 3-7b, that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

	b.  Paragraph 3-7c, that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC for discharges issued under the provisions of Chapter 10 of this regulation; and 

	c.  Chapter 10, 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 under other than honorable conditions is normally considered appropriate.  

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 112a, for wrongful use possession and/or distribution of a controlled substance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is devoid of any letters of commendation or recommendations for personal awards for meritorious service. 

2.  The applicant’s contention that his service prior to being charged with drug possession and distribution warrants a general discharge is unfounded.  His record is not so exceptionally meritorious as to outweigh the serious nature of the offense of drug possession and distribution.  

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X____  ___X____  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.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005754



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ABCMR Record of Proceedings (cont)                                         AR20080005754



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