IN THE CASE OF:	

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080016217 


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.

2.  The applicant states his records will show that a one-time incident does not justify the characterization of his service.

3.  The applicant provides, in support of his application, copies of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 4 January 1983 and two personal references.

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 record shows he enlisted in the Regular Army on 10 January 1980 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty of 76C (Equipment Records & Parts Specialist).  He was assigned to the 27th Maintenance Battalion at Fort Hood, Texas on 8 July 1980.

3.  On 8 December 1982, court-martial charges were preferred against the applicant for wrongful possession of a small quantity of marijuana, wrongful possession of a small quantity of LSD, and wrongful distribution of a small quantity of LSD.

4.  On 9 December 1982, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of at least one of the offenses with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

5.  A captain of the Judge Advocate General Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Code of Military Justice; of the possible effects of a discharge under other than honorable conditions, if his request is approved; and of the procedures and rights available to him.

6.  The appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be reduced to private/pay grade E-1 and that he be issued a discharge under other than honorable conditions.

7.  On 4 January 1983, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service.  He had completed 2 years, 11 months, and 25 days of active service that was characterized as under other than honorable conditions.  

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 14 November 1983, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.  

9.  The applicant submitted two personal references that attest to his willingness to help others and volunteer for his church's activities.  His pastor believes the applicant has the necessary qualities to perform any task in which his personal knowledge and skills set permits him.

10.  Army Regulation 635-200 sets forth the basic authority for the administrative 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment.

11.  Army Regulation 635-200 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.

12.  Army Regulation 635-200 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 voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  His 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.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel due to his involvement with wrongful possession and distribution of illegal drugs.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

4.  The applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20080016217





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ABCMR Record of Proceedings (cont)                                         AR20080016217



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