IN THE CASE OF:	  

		BOARD DATE:	       4 September 2008

		DOCKET NUMBER:  AR20080006283 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states he entered active duty at a point when he was unstable, immature, and very easily influenced.  He involved himself in matters that were not productive to a military career.  It has now been 20 years since his discharge and he is a God fearing person in a better way of life.  He desires the upgrade to allow him to obtain Department of Veterans Affairs (VA) benefits to improve his life and that of his family.

3.  The applicant provides no supporting documentation.

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 18 September 1984 at age 19.  He completed training and was awarded the military occupational specialty 77F (Petroleum Supply Specialist).

3.  The applicant served in Panama from 16 February 1985 through 17 March 1988.

4.  The record shows that he applicant received a letter of reprimand for not participating in a 100-percent company urinalysis screening in February 1987.  He subsequently underwent a command-directed urinalysis and tested positive for cocaine use.

5.  On 14 May 1987, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for leaving his appointed place of duty on 8 April 1987, for being absent without leave (AWOL) from 8 April 1987 to 10 April 1987, and for wrongful use of cocaine. 

6.  A DA Form 4126-R (Bar to Reenlistment) shows that, in addition to the charges listed above, the applicant also had issued two checks that were dishonored due to insufficient funds and had failed to honor another just debt.  The bar to reenlistment was approved on 19 May 1987.

7.  The applicant went AWOL on 2 June 1987.

8.  On 12 June 1987, the applicant's wife requested that she be allowed to return to the Continental United States due to personal and financial problems arising from the fact that he husband was AWOL and had a drug problem.  This request was granted.

9.  Upon his return to military control on 29 July 1987, court-martial charges were preferred for this period of AWOL and a second positive urinalysis test confirming illegal use of cocaine.

10.  On 10 August 1987, 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 a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.  The applicant declined to make any written statement on his own behalf.
11.  The discharge authority approved the request for discharge, directed that the applicant be reduced to the lowest enlisted grade, and be separated with a UOTHC discharge.

12.  The applicant was discharged on 25 August 1987 with a UOTHC.  He had 2 years, 10 months, and 10 days of creditable service with 48 days of lost time.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7b states that a general discharge 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 states that a 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 a UOTHC for discharges issued under the provisions of chapter 10 of this regulation.

	c.  Chapter 10, in pertinent part, states 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.

14.  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 86, for periods of AWOL in excess of 30 days, or Article 126a, for illegal use of a controlled substance.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 19 years of age at the time he entered active duty, had satisfactory completed training and had served for over two years before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3.  The mere passage of time does not mitigate the seriousness of the applicant's misconduct.  The applicant continued to use illegal drugs even after having been punished for their use.  He also went AWOL despite having been punished for this action previously.

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)                                         AR20080006283





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ABCMR Record of Proceedings (cont)                                         AR20080006283



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