IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017429 


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 her general discharge be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that she applied to the Army Discharge Review Board (ADRB) [the ADRB incorrectly referred to the applicant as a male] to have her discharge upgraded so that she could receive education benefits, but that the ADRB only upgraded her discharge under other than honorable conditions to a general discharge under honorable conditions.  Therefore, she still cannot receive education benefits.  She also states that she is truly sorry for her conduct which led to her discharge.  She is a single parent going to school and working two jobs and that she needs her education benefits.  

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she enlisted in the Regular Army on 22 April 1999.  She completed basic and advanced individual training and was awarded military occupational specialty 74B (Information Systems Operator).  After serving in Germany, she was reassigned to Fort Lee, Virginia for what would be her final permanent duty assignment.




2.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
5 August 2003, shows the applicant acknowledged that she understood her rights and that she waived her rights.  She also acknowledged that she was willing to discuss or make a statement regarding an offense(s) under investigation without first talking to a lawyer.  The applicant essentially admitted that she smoked marijuana daily, and that she smoked four or five blunts [cigars with the tobacco emptied out and replaced with marijuana] a day.  

3.  On 14 August 2003, the applicant was informed that charges were preferred against her for wrongfully using marijuana; an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.

4.  On 27 August 2003, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  She acknowledged that she understood she could request discharge for the good of the Service because charges had been preferred against her under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  She also acknowledged that she made her request for discharge of her own free will and she was not subjected to any coercion whatsoever by any person.  She further acknowledged she understood that by submitting her request for discharge, she was acknowledging that she understood the elements of the offense she was charged with, and was guilty of the charge against her or of a lesser-included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Additionally, she stated that under no circumstances did she desire further rehabilitation, for she had no desire to perform further military service.  

5.  In her request for discharge, the applicant acknowledged that she consulted with counsel, who fully advised her of the nature of her rights under the UCMJ, the elements of the offense with which she was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  She also understood that although her legal counsel furnished her legal advice, the decision was her own.  

6.  The applicant also acknowledged she understood that if her request for discharge was accepted, she may be discharged under conditions other than honorable, and that she understood the possible effects of an Under Other Than Honorable Conditions Discharge Certificate.  She also acknowledged she understood as a result of the issuance of such a discharge she would be deprived of many or all Army Benefits and that she may be ineligible for or all benefits administered by the Department of Veterans Affairs (DVA), and that she may be deprived of her rights and benefits as a veteran under both Federal and State law.  Additionally, she acknowledged she understood she could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  

7.  On 4 September 2003, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and essentially directed that she be furnished an Under Other Than Honorable Conditions Discharge Certificate.  It was also directed that the applicant be reduced in rank to private/E-1.  On 10 October 2003, the applicant was discharged accordingly.

8.  In January 2007, the ADRB upgraded the applicant's discharge under other than honorable conditions to a general discharge.  This action also entailed the restoration of the applicant's rank and pay grade of specialist/E-4.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7a, 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.

11.  Army Regulation 635-200, paragraph 3-7b, 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 contends that her general discharge should be upgraded to an honorable discharge.

2.  The fact that the applicant is requesting that her general discharge be upgraded to an honorable discharge in order to obtain education benefits was considered.  However, The Army Board for Correction of Military Records does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.

3.  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.

4.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that she voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial, and that she understood that she may be ineligible for many or all benefits administered by the DVA.  As she did not provide any evidence which shows that any requirements of law and regulation were not met, or that her rights were not fully protected throughout the separation process, regularity must be presumed in her separation proceedings.  Additionally, while the ADRB found it fit to upgrade the characterization of her service from under other than honorable conditions to under honorable conditions, it appropriately determined upgrading her characterization of service to fully honorable would be inappropriate.

5.  The applicant’s record of indiscipline which, by her own admission, included smoking marijuana four to five times daily does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an honorable discharge.

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.




      _______ _ 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)                                         AR20080017429



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ABCMR Record of Proceedings (cont)                                         AR20080017429



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