IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080007589 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he became a heroin addict in Vietnam.  He battled and overcame his addiction until he relapsed in 1986.  When he began attending Narcotics Anonymous (NA) meetings, someone informed his chain of command and an investigation followed.  With only 4 years until retirement, he was offered the choice of a felony conviction or a UOTHC discharge.

3.  The applicant provides:

	a.  A copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty).

	b.  A letter from his wife, dated 27 March 2008.

	c.  A copy of his DA Form 2-1 (Personnel Qualification Record).

	d.  A copy of a Metropolitan Police Department, Washington, DC Criminal History Request showing no record.


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 enlisted in the US Army Reserve Delayed Entry Program (DEP) for 6 years on 4 May 1971.  On 29 June 1971, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 30 June 1971.  Thereafter, he remained on continuous active duty until he received a UOTHC discharge on 30 June 1987 under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.

3.  The applicant's record does not contain a chapter 10 discharge packet detailing the circumstances which led to his discharge.  However, a DA Form 2166-6 (Enlisted Evaluation Report) for the period August 1986 to August 1987 reveals that, as a Sergeant First Class (SFC/E-7), his "behavior and actions roused nothing but moral indignation.  His total disregard for the law and despicable acts involving illicit drugs brought great disregard [sic] upon himself as a leader."

4.  The applicant's DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

5.  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.  A discharge under other than honorable conditions is normally considered appropriate.

6.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.

2.  The applicant was a senior noncommissioned officer (NCO) with more than 15 years of service when he committed an offense involving illicit drugs.  As a senior NCO, he had an obligation to obey the Army's rules and regulations involving drug and alcohol use, and to set an example for junior enlisted Soldiers. He failed in that duty.

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, is not available; however, it is presumed the request was administratively correct and in conformance with applicable regulations.

4.  The applicant's request for a chapter 10 discharge, even though faced with a UOTHC discharge, tends to show he wished to avoid the court-martial, the felony conviction, and the punitive discharge that he might have received.

5.  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

__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
      
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)                                         AR20080007589



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ABCMR Record of Proceedings (cont)                                         AR20080007589



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