IN THE CASE OF:	

		BOARD DATE:	27 August 2009  

		DOCKET NUMBER:  AR20090005843 


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 discharge under other than honorable conditions (UOTHC) be upgraded to fully honorable and the time he spent in the Correctional Custody Facility (CCF) be removed from his record.  He also requests veterans' benefits and lost wages.

2.  The applicant states that he received a letter from the Army in September 1983 telling him his positive urinalysis test was not scientifically or legally supportable for use in disciplinary or administrative actions.

3.  The applicant provides an unaddressed, undated, and unsigned letter from the Deputy Chief of Staff for Personnel of the Army; a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)); and a copy of Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation which governs the operation of this Board.

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 military records show that he enlisted in the Regular Army on 3 September 1980 and was awarded the military occupational specialty of power generator equipment repairer.

3.  On 23 May 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for failing to go to his appointed place of duty and disobeying a lawful command.  His punishment consisted of a reduction from pay grade E-3 to E-2, a forfeiture of $125.00, and 7 days confinement in the CCF.

4.  On 18 June 1983, court-martial charges were preferred against the applicant for failing to go at the time prescribed to his appointed place of duty on 7, 8, and 10 June 1983; for behaving in a disrespectful manner towards as commissioned officer; for twice disobeying lawful orders on 9 June 1983; and for being disrespectful in language towards a superior noncommissioned officer.

5.  On 8 July 1983, the applicant requested discharge in lieu of court-martial for the good of the service.  In that request the applicant acknowledged that if his request was accepted he could be given a discharge UOTHC.

6.  The applicant's request was approved by the appropriate authority.  Accordingly, on 20 July 1983, the applicant was discharged UOTHC for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

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, 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.

9.  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.  Contrary to the applicant's contention, he was not fined or placed in the CCF as a result of a positive drug urinalysis.  He was fined and placed in the CCF for failing to go to his appointed place of duty and disobeying a lawful command.

2.  Likewise, the applicant was not discharged based on a positive urinalysis.  He was discharged at his own request to avoid the consequences of a trial by court-martial.  None of the charges preferred against him were based on a positive urinalysis.

3.  The applicant's administrative discharge was accomplished in accordance with the regulations in effect at the time with no indication that the applicant's rights were violated.  As such, there is no basis for granting the applicant's request.

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)                                         AR20090005843



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ABCMR Record of Proceedings (cont)                                         AR20090005843



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