IN THE CASE OF:	  

		BOARD DATE:	        30 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012316 


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. 

2.  The applicant states that he did not understand his discharge and that he maintained exemplary performance as a single channel radio operator.

3.  The applicant provides no additional documents with his 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 enlisted in the Regular Army in Houston, Texas on 22 November 1989 for a period of 3 years, training as a single channel radio operator and assignment to Fort Hood, Texas.
3.  He completed his basic combat training at Fort Jackson, South Carolina and his advanced individual training (AIT) at Fort Gordon, Georgia before being transferred to Fort Hood on 6 June 1990.  He was advanced to the pay grade of E-3 on 1 September 1990. 

4.  On 26 June 1991, he extended his enlistment for a period of 11 months in order to complete the service remaining requirements for assignment to Panama. He was transferred to Panama on 9 September 1991 and on 11 September 1991, he tested positive for cocaine.  The record is silent as to any punishment imposed for that offense.

5.  He was advanced to the pay grade of E-4 on 1 April 1992 and on 28 July 1992, he again tested [positive] for cocaine.   

6.  The applicant denied the use of cocaine and requested a re-test of his urine sample.  A re-test was conducted and again came back positive for cocaine.  Charges were preferred against the applicant on 14 September 1992 for the wrongful use of cocaine and the commanding general directed that he be tried by a special court-martial empowered to adjudge a bad conduct discharge.  The maximum punishment for his offense was a Dishonorable Discharge, confinement for 5 years, total forfeiture of pay and allowances, and reduction to the pay grade of E-1.  

7.  On 1 October 1992, after consulting with defense counsel, the applicant submitted a request for 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 his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an undesirable discharge, characterized as under other than honorable conditions, and that he might be deprived of all benefits as a result of such a discharge.  He also indicated that he understood that he was allowed to submit a statement in his own behalf; however, there is no evidence in the available records to show that he did so.  

8.  The appropriate authority (a major general) approved his request on 2 October 1992 and directed that he be discharged under other than honorable conditions. 

9.  Accordingly, he was discharged under other than honorable conditions on 21 October 1992, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years and 11 months of total active service.     

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  An under other than honorable conditions discharge was normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.   

4. The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the nature of his misconduct.  His service does not rise to the level of a discharge under honorable conditions. 



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)                                         AR20080012316



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ABCMR Record of Proceedings (cont)                                         AR20080012316



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