IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080007894
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 his discharge be upgraded to honorable.
2. The applicant states he has paid his debt to society.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty).
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 applicants 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 applicants 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 on 27 July 1983 and was trained as an infantryman, military occupational specialty (MOS) 11B.
3. On 17 May 1985, court-martial charges were preferred against the applicant for a violation of Article 112a, Uniform Code of Military Justice (UCMJ), for on or about 15 February 1985, in Baumholder, Germany, wrongfully distributing .60 grams of marijuana in the hashish form; and for on or about 21 February 1985, in Baumholder, Germany, wrongfully distributing .2.03 grams of marijuana in the hashish form.
4. On 5 June 1985, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In so doing, he stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service. He stated that he understood the nature and consequences of the undesirable discharge that he might receive. He declined to submit a statement in his own behalf.
5. The applicant's chain of command recommended approval of his request for discharge for the good of the service. On 18 June 1985, the approving authority approved the request and directed the applicant receive an under other than honorable conditions discharge.
6. On 11 July 1985, the applicant was discharged under other than honorable conditions under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an honorable discharge because he has paid his debt to society.
2. The applicant was caught attempting to sell drugs. Court-martial charges were preferred against him and he was recommended for a special court-martial empowered to impose a bad conduct discharge.
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. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial 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) AR20080007894
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ABCMR Record of Proceedings (cont) AR20080007894
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