IN THE CASE OF:	  

		BOARD DATE:	      8 OCTOBER 2009

		DOCKET NUMBER:  AR20090009422 


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, in effect, that his discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that his discharge was unjust because it involved entrapment for possession of marijuana in hashish form.  He goes on to state that an informant was used to entrap him and that it was an injustice to trap him for the wrong intention because the drug was to be used for his personal use.  He also states that it was an injustice because prostitution is legal in Europe.

3.  The applicant provides no additional documents with 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 was born on 27 February 1956 and enlisted in the Regular Army in Montgomery, Alabama, with a moral waiver on 19 August 1981 for a period of 3 years and training as a petroleum supply specialist.  He completed his basic training at Fort Jackson, South Carolina, and his advanced individual training at Fort Lee, Virginia, before being transferred to Germany on 28 December 1981.

3.  On 27 April 1982, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful possession and distribution of marijuana in the hashish form.

4.  On 3 May 1983, NJP was imposed against the applicant for losing his assigned M60 machinegun.

5.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, the available records do contain a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial on 22 August 1983.  He had served 2 years and 4 days of total active service.

6.  On 25 June 1991, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he had been entrapped by an ex-prostitute and civilian informant and because he was framed and could not afford an attorney, he requested discharge in lieu of trial by court-martial because he was young and scared and had never been to jail.  He also contended that he was very well liked in his community.  On 22 April 1994, the ADRB found that his discharge was both proper and equitable and voted unanimously to deny his request.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he must indicate that he has been briefed and understands the consequences of such a request as well as the discharge he might receive.  

8.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons appear to be appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him and was simply given what he requested.

4.  The applicant's contentions have been noted.  However, they are not sufficient to warrant an upgrade of his discharge when compared to his otherwise undistinguished record of service.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090009422



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ABCMR Record of Proceedings (cont)                                         AR20090009422



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