BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090006721 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he served honorably for 12 year and 
8 months; however, he was tasked to attend the advanced course at Fort Lee, Virginia.  While he was attending the course, he tested positive for drugs.  He adds that this was a one- time thing and at that time he was suffering from depression.  He adds that he suffered from depression when he was a child.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement in support of his application.  

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 record shows that he enlisted in the Regular Army for a period of 3 years on 19 August 1980.  He completed the required training and was awarded military occupational specialty 76P (Materiel Control & Accounting Specialist).  The applicant's service was continuous through a series of reenlistments and extensions.  The highest rank/grade he attained during his military service was sergeant first class, pay grade E-7. 

3.  A DA Form 1059 (Service School Academic Evaluation Report), dated April 1993, shows that the applicant tested positive for an illegal controlled substance while attending the Advanced Noncommissioned Officer Course (ANCOC).  The applicant was administratively relieved from the course because of conduct unbecoming a noncommissioned officer. 

4.  The court-martial charge sheet is missing from his file; however, the applicant's military record shows that on 20 April 1993, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he understood that he may request a discharge because of the following charges that were preferred: three violations of the wrongful use of a controlled substance.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under other than honorable conditions, and of the rights available to him.  He acknowledged that he was making the request by his own free will and had not been subjected to any coercion.  By submitting this request he acknowledged that he was guilty of one or more of the charges that were preferred against him.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  He freely and without coercion or duress from any party waived his rights to request a medical examination and mental status evaluation.

5.  The applicant submitted a statement in his own behalf.  The applicant stated, in effect, that he respectfully requested that his character of discharge not be under other than honorable conditions and that the separation authority direct an honorable or a general discharge.  He added that he had no other disciplinary problems and had excellent evaluations.  He also earned and received several commendations and medals for his duty performance.  If he received a discharge under other than honorable conditions he would be ineligible to receive any type of separation pay and the discharge would severely impact his ability to obtain employment.  He requested that consideration be given in light of his many years of service.    

6.  On the same day, the separation authority approved the applicant’s request for discharge, reduced the applicant to the lowest enlisted grade, and directed that he be that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 23 April 1993, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation  635-200, chapter 10, in lieu of court-martial with a discharge under other than honorable conditions.  He completed 12 years and 8 months of creditable active military service.  

8.  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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

9.  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.  

10.  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.


11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided any evidence that shows that the discharge he received was inequitable or unjust.

2.  Although the charge sheet is missing from his file the applicant admitted being guilty of three violations of the wrongful use of a controlled substances.  The evidence of record also confirms that after consulting with defense counsel the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  By using illegal drugs while serving as a senior noncommissioned officer, the applicant knowingly risked his military career and abused the trust and confidence placed in him as a noncommissioned officer.  Therefore, his discharge accurately reflects his misconduct and absent any evidence of an error or injustice in the separation process it would not be appropriate to grant the requested relief in this case. 

4.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.

5.  Therefore, in view of the foregoing, 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)                                         AR20090006721



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ABCMR Record of Proceedings (cont)                                         AR20090006721



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