DOCKET NUMBER:  AR20090001923 


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 an upgrade of his discharge.

2.  The applicant states that back in 1987 his name came up during an investigation of another Soldier, and he was advised by his counsel that he was not a party to the allegations; rather, he was a person who knew the facts.  He adds that he was young at the time and did not want to risk his remaining military service and took the opportunity to leave the service when it was offered to him, without fully understanding the implications.  He further adds that since leaving the Army, he has been a model citizen with a clean record.  He pursued additional education and experienced success in life.  However, he wishes an upgrade to his discharge which would open doors to him and his family.  

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 records show he was born on 21 October 1966 and enlisted in the Regular Army for a period of 2 years at nearly 19 years of age on 8 August 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 15E (Pershing Missile Crewmember).  He also executed an 11-month extension in the Regular Army on 6 February 1987.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  The applicant’s record also shows he served in Germany from on or about 13 January 1985 to on or about 12 June 1988.  His awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  

4.  On 19 May 1987, court-martial charges were preferred against the applicant for one specification of conspiring with another Soldier to wrongfully possess   with intent to distribute 50 grams, more or less, of amphetamines on or about     15 December 1986; one specification of conspiring with another Soldier to wrongfully distribute 25 grams, more or less, of amphetamines on or about 15 December 1986; two specifications of wrongfully using some amount of amphetamines during October 1986 and January 1987; one specification of wrongfully possessing one gram of amphetamines on five occasions between December 1986 and February 1987; one specification of wrongfully distributing some amount of amphetamines at divers times between December 1986 and February 1987; one specification of wrongfully possessing 50 grams, more or less, of amphetamines on or about 15 December 1986; and one specification of wrongfully distributing 25 grams, more or less, of amphetamines on or about 15 December 1986. 

5.  On 5 June 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

7.  On 11 June 1987, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 30 June 1987, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 1 year, 10 months, and 23 days of creditable active service.

8.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s     15-year statute of limitations. 

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.  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.

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 his discharge should be upgraded.

2.  The evidence of records shows that the applicant was nearly 19 years of age at the time of his enlistment and over 20 years of age at the time he committed his multiple offenses.  However, there is no evidence that the applicant was any less mature than other Soldiers who successfully completed their periods of enlistment without using and/or distributing amphetamine. 

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or 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.




      _______ _   _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)                                         AR20090001923



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ABCMR Record of Proceedings (cont)                                         AR20090001923



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