IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012480 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he was not officially charged or tried for the allegations against him.  He states that he had two or three hearings for the purpose of determining if he should be court-martialed; however, he was not tried due to lack of evidence.  He states that he was suspected of the allegations but there was no real proof against him in regard to the allegations.  He states that he had no lost duty time and that he continued to perform his duties as a Border Guard with one of the 2nd Armored Cavalry Regiment units.  He states that he spent most of his time in the rank of private first class (E-3) and that he was “put in” for a promotion to the pay grade of E-4.  He states that he was a perfect Soldier during his hearings and that he never received an Article 15 or anything else.  He states that he was discharged because he was in another country far away from his home and family.  He states that he regrets his decision and that he should have stayed in the Army because the Army taught him how to be a man.  He states that he was young and dumb but now he is 46 years old and he has never been in any other trouble due to drugs and alcohol.  He concludes by stating that he wants to be a Texas Peace Officer and that he needs a discharge upgrade so he can be a Sheriff.

3.  The applicant provides in support of his application, an “addendum” explaining the reasons that he believes his discharge should be upgraded; and a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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.  On 27 February 1980, the applicant enlisted in the Regular Army in Houston, Texas, for 3 years, in the pay grade of E-1.  He successfully completed his training as a cavalry scout.  He was transferred to Germany on 29 May 1980.

3.  On 4 March 1981, charges were preferred against the applicant for one specification of transferring methamphetamines; one specification of possession of methamphetamines; one specification of wrongful use of marijuana; one specification of wrongful transfer of marijuana in the hashish form; and two specifications of wrongful possession of marijuana in the hashish form.

4.  The applicant was notified of the charges pending against him on 4 March 1981.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged that he was guilty of the charges against him or a lesser included offense which also authorizes the imposition of a bad conduct discharge.

5.  The appropriate authority approved the request for discharge on 1 July 1981 and he recommended the issuance of a discharge under other than honorable conditions.  Accordingly, on 31 July 1981, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a under other than honorable conditions discharge.  He had completed 1 year, 5 months, and 4 days of creditable active service.


6.  A review of the available records does not 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.

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

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

3.  The applicant’s contentions have been noted.  However, his records do not show that he was not tried by a court-martial due to a lack of evidence.  His records show that he was not tried by a court-martial because he submitted a voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he admitted that he was guilty of the charges against him or a lesser included offense that he now contends was only suspension.  

4.  The applicant was charged with one specification of transferring 
methamphetamines; one specification of possession of methamphetamines; one specification of wrongful use of marijuana; one specification of wrongful transfer of marijuana in the hashish form; and two specifications of wrongful possession of marijuana in the hashish form.  The fact that he now has a desire to become a Texas Peace Officer is not sufficiently mitigating to warrant the requested relief as his records clearly show that his service in the Army was other than honorable.

5.  In order to justify correction of a military record the applicant must show 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.


6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080012480



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ABCMR Record of Proceedings (cont)                                         AR20080012480



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