IN THE CASE OF:	

		BOARD DATE:	      9 April 2009

		DOCKET NUMBER:  AR20080019797 


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 general discharge be upgraded to honorable.

2.  The applicant states, in effect, that he believes a hearing should take place to correct the character of his service.

3.  The applicant provides no documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty in the Regular Army on 14 July 2005.

2.  During his period of service he was charged with wrongful use of marijuana on three occasions for which court-martial charges were preferred.  

3.  On 11 July 2006, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service-in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life.

4.  On 28 July 2006, the discharge authority approved the separation and directed the applicant be reduced to the lowest enlisted grade and discharged with a characterization of under other than honorable conditions.

5.  The applicant was separated with an under other than honorable conditions discharge on 7 August 2006.  He had completed 1 year and 24 days of creditable service.

6.  During his period of service he did not receive any personal awards, decorations, or letters of commendation.

7.  On 28 March 2008, after a personal appearance, the Army Discharge Review Board granted the applicant an upgrade of his discharge to a general discharge under honorable conditions and restored his rank to private/E-2.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 outlines the criteria for the characterization of service: 

   a.  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5." "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  

   b.  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  
   
   c.  Paragraph 3-7c states that an under other than honorable conditions discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an under other than honorable conditions discharge under the provisions of Chapter 10 of this regulation and provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a 
request for discharge for the good of the service in lieu of trial by court-martial. 


The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.  His discharge was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant knowingly used illegal drugs on at least three occasions in less than a year; therefore, he clearly established a pattern of behavior that is a significant departure from conduct expected of a Soldier.  The applicant has provided no evidence that would mitigate his misconduct; therefore, his service was not so meritorious as to warrant an honorable discharge.  

3.  The applicant stated that a hearing should take place; however, it does not appear that a personal hearing would reveal any evidence that was not available in the records or that could not have been provided with the current application.

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 requirement.

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)                                         AR20080019797



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ABCMR Record of Proceedings (cont)                                         AR20080019797



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