IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2008

		DOCKET NUMBER:  AR20080007846 


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, in effect, that his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant essentially states that there is an injustice in his record, and believes that his discharge is too severe for any of his conduct during his service. He also states, in effect, that he has severe medical problems, and that his discharge is preventing him from receiving benefits from the Department of Veterans Affairs (DVA).

3.  The applicant provides no additional evidence in support of this application.

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's military records show that he enlisted in the Regular Army on 14 September 1976.  He completed basic training and attended advanced individual training (AIT) for military occupational specialty (MOS) 72G (Data Communications Switchboard Center Specialist), but failed to complete this course for unknown reasons.  He then completed AIT and was awarded MOS 13B (Field Artillery Crewman).  Later in his career, he also was awarded MOS 72E (Tactical Telecommunications Center Operator) and 63D (Propelled Field Artillery System Mechanic), the latter of which was his primary MOS from 1981 until his date of separation.  He steadily progressed in rank from private/E-1 to sergeant first class/E-7.  In 1987, he was sent on temporary duty to attend the Mechanical Maintenance Advanced Noncommissioned Officer Course (ANCOC).

3.  In a memorandum, dated 3 September 1987, the applicant was essentially disenrolled from ANCOC after he tested positive for tetrahydrocannabinol (THC).

4.  On 25 March 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 13 July 1987 and 12 August 1987.  His punishment consisted of forfeiture of $500.00.  The applicant appealed this punishment; however, on 2 May 1988, the Commanding General, III Corps and Fort Hood, Texas, after reviewing all of the evidence, denied the applicant's appeal.

5.  On 24 January 1989, the applicant was informed that charges were preferred against him for wrongfully using marijuana between 21 December 1988 and 
19 January 1989, and attempting, with intent to prevent its seizure during a random urinalysis, to substitute a urine sample from his pants pocket instead of providing a urine sample as directed, which were offenses punishable under the UCMJ with a punitive discharge.

6.  On 24 January 1989, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and 


was not subjected to any coercion whatsoever by any person.  He also understood the elements of the offenses charged and was or would be found guilty of the charges against him or of lesser included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

7.  In his request for discharge, the applicant acknowledged that he consulted with counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also had been advised of the legal effect and significance of his discharge in the event his request was approved.  He also essentially understood that although his legal counsel furnished him legal advice, the decision was his own.  

8.  The applicant further understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable conditions discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits as a veteran under both Federal and State law.  Additionally, he acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  Further, he understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR) if he wished for a review of his discharge.  He also realized that the act of consideration by either board did not imply that his discharge would be upgraded. There is no indication that the applicant elected to submit any statements in his own behalf.

9.  On 25 January 1989, the proper authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also essentially directed that the applicant be reduced in rank to private/E-1.  On 
27 January 1989, the applicant was discharged accordingly.  




10.  In a letter, dated 23 April 1993, the ADRB informed the applicant that his petition to upgrade his discharge had been denied.

11.  The applicant essentially stated that there is an injustice in his record, and believes that his discharge is too severe for any of his conduct during his service. He also stated, in effect, that he has severe medical problems, and that his discharge is preventing him from receiving benefits from the DVA.

12.  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.

13.  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.

14.  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 contends that his discharge under other than honorable conditions should be upgraded to a general discharge. 

2.  The applicant's contention that his discharge is too severe for any of his conduct during his service was considered, but not found to have merit.  By wrongfully using marijuana, the applicant, a senior noncommissioned officer at the time, severely compromised the trust and confidence placed in him as an 


NCO.  As an NCO, he had the duty to support and abide by the Army's policies.  By using illegal drugs, the applicant knowingly risked a military career, violated the trust and confidence placed in him as an NCO, and undoubtedly caused an adverse impact on discipline, authority, morale, and the ability of his command to accomplish its mission.  

3.  The fact that the applicant is essentially attempting to obtain medical benefits from the DVA was noted.  However, the DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.  The fact that the applicant is seeking DVA medical benefits does not constitute that an error or injustice occurred in his discharge.  

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.

5.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  The applicant's record of service shows that he accepted NJP for wrongfully using marijuana, and was pending a trial by court-martial for offenses of the UCMJ punishable with a punitive discharge.  Based on this record of indiscipline, 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, he is not entitled to either an honorable or general discharge.

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)                                         AR20080007846



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ABCMR Record of Proceedings (cont)                                         AR20080007846



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