IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20090001818 


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 other than honorable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was enraged at being accused of using illegal drugs.  He did not use drugs and had voluntarily participated in the testing program because he believed it to be simply an experimental research project to field-test the procedures.  When the test results supposedly showed that he had used drugs, his sergeants and platoon leader supported him in contesting the results and the use of the results.  Two years later he received the attached letter stating that the procedures were not legally correct and inviting him to apply to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides a copy of an undated, unaddressed, and unsigned communication from the Department of the Army Office of the Deputy Chief of Staff for Personnel.

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 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 enlisted and entered active duty on 9 February 1982.  He completed basic training, advanced individual training as an infantryman, and basic airborne training.  In mid June 1982 he was stationed at Fort Bragg, North Carolina, with the 82nd Airborne Division.  In December 1982 he was granted a time-in-service waiver and advanced early to private first class, pay grade E-3.  He was awarded the Expert Infantryman Badge on 15 March 1983.

3.  On 13 May 1983, the applicant was absent without leave (AWOL).  A DA Form 4384-R (Commanders Report of Inquiry/Unauthorized Absence) shows that the applicant's superiors considered the reason(s) for his AWOL to be unknown.  They did not check, among others, the boxes marked "Drug Use" and "Trouble with Superiors."  The report was signed by the company's commanding officer and executive officer.

4.  On 17 August 1983, charges were preferred against the applicant for AWOL from 13 June 1983 to 17 July 1983.

5.  The applicant consulted with 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The chain of command recommended that the applicant be separated with an other than honorable discharge.  The separation authority approved the applicant's request and directed the issuance of an Under Other than Honorable Discharge Certificate.
8.  The applicant was discharged on 2 September 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had 1 year, 6 months, and 24 days of creditable service and 65 days of lost time due to AWOL.

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, 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.

10.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 31 August 1983 and contended that his discharge should be upgraded because it was based upon a single isolated incident in 18 months of service with no other adverse actions.  The ADRB denied the applicant's request.

12.  The applicant provides a copy of an undated, unaddressed, and unsigned communication from the Department of the Army Office of the Deputy Chief of Staff for Personnel which describes a urinalysis testing program in use between April 1982 and October 1983 that was determined to be scientifically and legally flawed.  It invited the recipient to apply to the ABCMR if the individual believed that action had been taken against them under this flawed program.

13.  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.

14.  Paragraph 3-7b of the regulation 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 states, in effect, that he was AWOL because he was enraged at being accused of using illegal drugs.  He did not use drugs and had voluntarily participated in the testing program because he believed it to be simply an experimental research project to field-test the procedures.  Two years after the discharge he received the attached letter stating that the procedures were not legally correct.

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

3.  His assertion about the cause of his AWOL is not convincing because his chain of command reported that his reasons for going AWOL were unknown, because he did not mention this factor in his ADRB appeal, because it seems unlikely that he would have waited 20 years after the alleged receipt of the subject communication to raise this issue, and because the communication was not addressed to him there is no substantiating evidence to link that piece of correspondence to his case.

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)                                         AR20090001818





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ABCMR Record of Proceedings (cont)                                         AR20090001818



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