IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090006827 


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 (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states that his UOTHC discharge was based on one isolated incident in 123 months of service with no other adverse action.  He alleges that the Article 32 investigation contained racial comments by referring to one individual as "White and from Central Kansas."  His military counsel was pressured by his commander because of the commander's zeal to punish him.  His military counsel was not able to provide adequate counsel to him for fear of his career being destroyed.  His commander did not desire the truth, the commander only wanted to destroy his career based on a racial problem involving a black man and a white woman.  He had no chance of a fair hearing 24 years ago.  He alleges that the charges were false and were never fully investigated.  

3.  The applicant provides a copy of a DA Form 5180-R (Urinalysis Custody and Report Record) and a withdrawal of charges and specifications 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.  After having prior enlisted service, the applicant was appointed as a Reserve commissioned officer, on 3 March 1977, with a concurrent call to active duty.  He was promoted to captain in February 1981.  

3.  A Urinalysis Custody and Report Record, dated 1 March 1985, shows the applicant's laboratory results as "Negative."  

4.  On 10 April 1985, charges were preferred against the applicant for violation of the following offenses: (1) failing to obey a lawful general regulation by failing to report to the proper authority the falsification of a mental test score of an applicant for enlistment in the Army; (2) wrongfully using some amount of marijuana (two specifications); (3) wrongfully using some amount of cocaine; (4) wrongfully and dishonorably using marijuana and cocaine in the presence of enlisted subordinates; (5) wrongfully and dishonorably engaging in romantic and sexual relations with a sergeant; (6) wrongfully having sexual intercourse with a sergeant, and (7) wrongfully fraternizing with an enlisted person.  On 6 May 1985, an additional charge was preferred against the applicant for failing to obey a lawful regulation by concealing or assisting in the concealing of information.

5.  The Article 32 investigation is not available.  On an unknown date the applicant requested resignation for the good of the service under the provisions of Army Regulation 635-120, chapter 5.  His resignation packet is not available.   

6.  On 3 September 1985, the general court-martial charges were terminated by the convening authority due to the subsequent administrative discharge of the applicant from the service under the provisions of Chapter 5, Army Regulation 635-120.

7.  On 4 September 1985, the applicant was separated under the provisions of Army Regulation 635-120 with an UOTHC discharge.  His DD Form 214 shows he had completed 8 years, 6 months, and 2 days of active military service with no lost time during the period under review.  He had also completed a total of 10 years, 2 months and 25 days of active military service.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

9.  Army Regulation 635-120 implements the statutory provisions of Title 10 U. S. Code governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  However, there is no evidence available and he has not provided any to substantiate his claims.  

2.  In the absence of the applicant's voluntary request for separation under the provisions of Army Regulation 635-120, chapter 5 for the good of the service to avoid trial by court-martial, it is presumed it was administratively correct and in conformance with applicable regulations.  

3.  Considering the seriousness of the applicant's offenses, it appears that his service was appropriately characterized.  The applicant may feel that an UOTHC discharge was unwarranted, however, based on the available evidence he could have been tried by a general court-martial and he would have a federal conviction on his records.  Or, he could have accepted trial by court-martial and been exonerated of all charges.  

4.  After a review of the available evidence, it is determined the applicant has not presented sufficient evidence which warrants changing his UOTHC discharge to 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)                                         AR20090006827



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ABCMR Record of Proceedings (cont)                                         AR20090006827



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