DOCKET NUMBER:  AR20090003203 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that he received an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.

3.  The applicant further states that he believes he was ill advised by his military attorney when he was arrested in 1985.  He was arrested for possessing 4 grams of marijuana by the German police.  He was advised to sign for a chapter 10 discharge when most Soldiers accused of this crime were advised to accept an Article 15 (less punitive measure).  He adds that he served honorably for 4 months less than 4 years and for a miniscule amount of marijuana, he received an under other than honorable conditions discharge.  He earned a Good Conduct Medal at 3 years and he had no conduct problems.  He thinks that if he had received an Article 15, which is a decrease in one rank and a $300.00 fine, he would have stayed in the Army and would have completed his last 4 months of his fourth year honorably.

4.  The applicant continues by stating that he had no infractions of behavior for the first 3 years and 6 months of service.  He never used illicit drugs after his service and finds it difficult to believe to this day that he was punished as severely as he was 23 years ago for this single incident.  Since then, he has worked for the Department of Veterans Affairs for 17 years as a Federal employee serving American veterans as a registered nurse at the Batavia Veterans Affairs Hospital in upstate New York.  He is the infection control practitioner in a 120-bed hospital serving veterans from all over New York State.

5.  The applicant adds that he earned a bachelor's degree in Nursing and a master's degree in Public Administration from the State University of New York, Brockport.  Each time he applies for a new employment position, college degree, or high security item, he has to explain why his discharge is "general" and not "honorable."  He thinks this will cause a future impediment from opportunities to serve the Federal government.  He does take responsibility for his misbehavior and retrospectively realizes his short comings.  He states that he should not have agreed to his military-appointed attorney's recommendation, but he was 21 years old and didn't know any better.  He has been paying for this for 23 years.  He is asking for an honorable discharge.  He states he does respect the Army and loves his country and will continue to serve our veterans honorably in the medical field.

6.  In support of his request, the applicant provides a copy of a Department of Veterans Affairs Service Award he received on 6 February 2008 in appreciation of his 20 years of dedicated service, a Department of Veterans Affairs Performance Award he received in December 2007 for significantly contributing to the mission of the Department, and a copy of the diploma for the Master of Public Administration Degree he was granted in May 2008.

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 25 January 1963 and enlisted in the U.S. Army Reserve on 25 July 1980.  The applicant enlisted in the Regular Army on 9 July 1981 at the age of 18 years, 5 months, and 15 days.  He successfully completed one-station unit training at Fort Bliss, Texas, and upon completion of this training, he was awarded military occupational specialty 24G (Improved Hawk Information Coordination Central Mechanic).
3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was promoted to the rank and pay grade of specialist four, E-4, on 1 January 1984.  This was the highest rank that he attained while he served in the Army.

4.  On 28 January 1985, court-martial charges were brought against the applicant for wrongfully having in his possession 23 grams, more or less, of marijuana.  The applicant was informed of the charges against him and of the names of his accusers.

5.  On 5 February 1985, before requesting discharge, the applicant was counseled by a captain assigned to the Judge Advocate General’s Corps as a defense counsel.  The applicant was advised of the basis for the contemplated trial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of receiving an under other than honorable conditions discharge, and of the procedures and rights available to him.  Defense counsel acknowledged that the decision to submit a request for discharge for the good of the service was the applicant's.

6.  On 5 February 1985, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant stated he understood that he could request a discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice which authorized the imposition of a bad conduct or dishonorable discharge.  On the date he submitted his request for discharge for the good of the service in lieu of trial by court-martial the applicant was 22 years and 11 days of age.

7.  The applicant stated he was making his request of his own free will and had not been subjected to coercion by any person.  He stated he had been advised of the implications that were attached to his request for a discharge.  By submitting his request he acknowledged that he understood the elements of the charged offenses and that he was guilty of an offense or lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that he did not desire further rehabilitation because he had no desire to perform further military service.

8.  The applicant acknowledged he had the opportunity to consult with detailed counsel and had been advised of the nature of his rights under the Uniform Code of Military Justice, the elements of the charged offenses and any relevant lesser included offenses, 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.  Although counsel had furnished him with legal advice, the decision, he stated, was his own.

9.  The applicant stated that he understood that if his request was accepted he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Conditions Discharge Certificate.  He acknowledged he had been advised of the possible effects of an under other than honorable conditions discharge and understood that as a result of the issuance of such a discharge he could be deprived of all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if issued an under other than honorable conditions discharge.

10.  The applicant was advised that he could submit a statement in his own behalf and that this statement would accompany his request for discharge.  The applicant indicated he would be submitting a statement with his request.

11.  In his statement, the applicant recapped his Army service.  He stated that he had always tried to be a professional Soldier.  He had never received an Article 15, letter of reprimand, or unfavorable counseling statement.  He had received a Good Conduct Medal, letters of appreciation, and certificate of achievement for his past duty performance.  He had planned to end his Army service in July 1985, join the Army Reserve, attend trade school, and learn more electronics.

12.  In his statement, the applicant also stated that he knew he had made a mistake.  He had been at a bar with a fellow Soldier when someone asked them if they wanted to buy some marijuana.  He purchased a small amount.  The Polizei stopped them in the other Soldier's car about 3 or 4 days later.  He still had his marijuana in his pocket.  He knew the other individual had marijuana, but he didn't know how much he had purchased because the person who sold it to them made them come to his car one at a time.

13.  A few weeks after they were arrested, the other Soldier talked to him and, in effect, asked what he should do.  He was afraid that he would go to jail because he had so much marijuana.  He told the applicant that he should say that some of the marijuana was his because he would get a court-martial anyway.  The applicant told him he was wrong because his battery commander had said he would get an Article 15.

14.  The applicant continued his statement and added that about a month after they were arrested, the other Soldier asked him to come to his girlfriend's house.  When they got to the girlfriend's house, he again started talking about what they should do.  He repeated that he didn't want to go to jail for all that marijuana.  He thought he was again going to ask him to claim some of the marijuana so he told him that he was not going to jail for anybody.  [In a statement that is not available for the Board's review, it appears that the other Soldier's girlfriend had made a statement quoting the applicant as having said, "Man, I won't let you go down for my dope."]

15.  The 2nd and 3rd endorsements [the chain of command's recommendations] are not available for the Board's review; however, on 21 February 1985, the approval authority approved the applicant's request for discharge for the good of the service in lieu of court-martial.

16.  The applicant was discharged under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of court-martial with his service characterized as under other than honorable conditions.  At the time of his discharge, the applicant had completed 3 years and 8 months of net active service with no time lost.

17.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Hand Grenade Bar, the Good Conduct Medal, and the Army Service Ribbon.

18.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 25 April 1992 and after reviewing the finding and conclusions of the ADRB, the Secretary of the Army directed that he be informed that his discharge had been changed to a general, under honorable conditions.

19.  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 had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges had been preferred.  An under other than honorable conditions discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge be granted if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.
20.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit sufficient evidence that would satisfy this requirement.

2.  The evidence shows court-martial charges were brought against the applicant for wrongfully having in his possession 23 grams, more or less, of marijuana, a charge for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, the applicant opted to submit a request for discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant alleges that he was ill advised by his military attorney to sign for a chapter 10 discharge; however, the request for discharge that the applicant signed and submitted clearly states that he was making the request of his own free will without coercion.

4.  The evidence shows that the military attorney, a defense counsel, who advised the applicant, advised him of "the basis for the contemplated trial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of receiving an under other than honorable conditions discharge, and of the procedures and rights available to him."  The military attorney, after having advised the applicant, then stated that the applicant had made his choice to submit a request for discharge for the good of the service and that the choice was his own.

5.  The applicant was discharged under the provisions of Army Regulation 
635-200, chapter 10, in lieu of court-martial at his request and received an under other than honorable conditions discharge.

6.  The evidence shows that the applicant applied to the ADRB for an upgrade of his discharge and after reviewing the finding and conclusions, his under other than honorable conditions discharge was changed to general under honorable conditions.

7.  The applicant's contention that he should not have agreed to his military-appointed attorney's recommendations because at 21 years [actually 22 years and 11 days] of age he didn't know any better was considered; however, he did not provide and there is no evidence that he was any less mature and less knowledgeable than other Soldiers of the same age who were faced with making the same or a similar decision after being found in a similar predicament.

8.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to a general or fully 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)                                         AR20090003203



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ABCMR Record of Proceedings (cont)                                         AR20090003203



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