IN THE CASE OF:	  

		BOARD DATE:	  21 October 2008

		DOCKET NUMBER:  AR20080012555 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that during a health and welfare inspection of his room, which he shared with three other Soldiers, a piece of hash was found on the floor.  He claims that because he was scared after being threatened with confinement at Fort Leavenworth, he requested a Chapter 10 discharge, which he was told to do by Judge Advocate General (JAG) officials.  He indicates that he qualified “expert” in all areas of his military training and that he always served honorably while on active duty.  He asserts that the hash was not his and that he only signed his discharge because he was scared.

3.  The applicant provides an Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (DA Form 293), in support of 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's military personnel records show he enlisted in the Regular Army and entered active duty on 10 June 1980.  He completed basic combat training at Ft. Jackson, South Carolina, and advanced individual training (AIT) at 
Fort Sill, Oklahoma.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 17C (Field Artillery Target Acquisition Specialist).

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments & Reductions), that he was advanced to specialist four (SP4) on 1 March 1983, and this is the highest rank he held while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 (PV1) on 16 August 1983.  Item 9 (Awards and Decorations) shows he earned the Army Service Ribbon and the Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant’s record contains two Personnel Actions (DA Forms 4187) which show he was apprehended and held in civil confinement pending trial from 5 - 7 August 1982.  The circumstances surrounding this apprehension and confinement are not on file.

5.  On 26 May 1983, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) by wrongfully having in his possession some amount of marihuana, in the form of hashish, on 16 May 1983.  On 22 June 1983, an additional charge was preferred against him for violating Article 134 of the UCMJ by having in his possession some amount of marijuana, in the form of hashish, on 25 April 1983.

6.  On 28 June 1983, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.  

7.  In his request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC Discharge.

8.  On 16 August 1983, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 26 December 1978, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 3 years, 2 months, and 15 days of creditable active military service.

9.  On 11 July 2008, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, the ADRB's 15-year statute of limitations had been exceeded in his case.  There is no indication he petitioned the ADRB for an upgrade of his discharge within the statute of limitations.  

10.  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.  An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UOTHC discharge should be upgraded to GD because he was threatened and because the hashish found in his room was not his has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to offenses 
under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  As a result, an upgrade of his discharge to either general or honorable would not be appropriate.

3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall undistinguished record of service clearly did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade now.  

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 request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      ________x______________
               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)                                         AR20080012555



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012555



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1