IN THE CASE OF:	

		BOARD DATE:	       18 JUNE 2009

		DOCKET NUMBER:  AR20090003904 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he was told by legal counsel that if he pled guilty to the lesser charge, after ten years a discharge upgrade would be attainable.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 August 1991 for a period of 4 years.  He successfully completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 31K (combat signaler).  He attained the rank/grade of specialist (SPC)/E-4 on 1 June 1993.  

2.  On 6 October 1993, charges were preferred against the applicant for using marijuana (three specifications), distributing marijuana (two specifications), using cocaine, and possessing marijuana.   Trial by special court-martial was recommended.  

3.  On 25 October 1993, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He also indicated in his request that he understood that there is no automatic upgrading or review of any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR for review of his discharge.  He elected not to make a statement in his own behalf.  

4.  On 27 October 1993, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

5.  Accordingly, the applicant was discharged under other than honorable conditions on 17 November 1993 under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Separations), chapter 10, in lieu of trial by court-martial.  He had served a total of 2 years, 2 months, and 21 days of creditable active service.

6.  On 22 December 2008, the ADRB denied the applicant's request for a discharge upgrade.

7.  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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.
9.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was noted; however, a discharge upgrade is not automatic.  In his request for discharge in lieu of trial by court-martial, he indicated that he understood that there is no automatic upgrading and that he must apply to the ADRB or the ABCMR for review of his discharge.  The ADRB denied his request for a discharge upgrade in 2008.   

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns but he elected not to do so.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Since the applicant’s record of service included serious drug offenses for which special court-martial charges were preferred, his record of service was not satisfactory and did not meet the standards of acceptable conduct and 
performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge 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.



      ________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)                                         AR20090003904



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ABCMR Record of Proceedings (cont)                                         AR20090003904



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