BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090011815 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he served his full enlistment commitment.  He also states he made a mistake, but was not offered treatment to correct the problem.  He adds that he was not aware he could appeal this matter and he now wants to clear up his record.

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

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 enlisted in the U.S. Army Reserve on 12 January 1984 and entered active duty in the Regular Army for a period of 4 years on 10 August 1984.  Upon completion of training, he was awarded military occupational specialty 11B (Infantryman).

3.  A DD Form 458 (Charge Sheet), dated 3 May 1988, shows the Commander, Company C, 4th Battalion (Mechanized), 6th Infantry Regiment, Fort Polk, Louisiana, preferred charges against the applicant for wrongful use of a controlled substance (marijuana) between on or about 7 March and 5 April 1988.

4.  An SF 93 (Report of Medical History) completed by the applicant on 28 March 1988 for the purpose of his separation physical examination, does not show an entry or indication by the applicant that he acknowledged the use of any drugs.

5.  On 16 May 1988, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to 
his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge and the document indicates that statements in his own behalf were submitted with his request:

	a.  The applicant's separation packet shows that a captain, who was a member of the Judge Advocate General's Corps, certified with his signature he had advised the applicant of the possible effects of an under other than honorable discharge, and of the procedures and rights available to him.

	b.  A statement, written by the applicant's defense counsel, summarizes the applicant's service in Germany, his awards and decorations, and states that the applicant had an approved early release before preferral of court-martial charges.  

   c.  A statement, written by the applicant's squad leader and first-line supervisor, states that the applicant should not be court-martialed, but instead he should be subject to a more lenient type of separation action.

6.  On 26 May 1988, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander also directed the applicant be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

7.  The applicant's DD Form 214 shows he entered active duty on 10 August 1984 and he was discharged on 31 May 1988 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  At the time he had completed 3 years, 9 months, and 22 days of net active service during this period.

8.  On 21 May 1991, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under other than honorable conditions discharge.  On 9 September 1993, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 112a for wrongful use or possession of controlled substances.

10.  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.

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.  The applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge because he served his full enlistment commitment.  He also contends he was not offered treatment to correct his drug problem and that he was unaware he could appeal the type and character of service of his discharge.

2.  The applicant's contentions were carefully considered and the records show:

   a.  the applicant's expiration of term of service (ETS) date was 9 August 1988.  The evidence of record shows he had an approved early release date prior to his ETS, charges were preferred against the applicant prior to the date of his early release, and that the applicant requested discharge for the good of the service.  In addition, records show that the applicant was discharged on 31 May 1988, which was prior to his ETS date.  Thus, the evidence of record refutes the applicant's contention that he served his full enlistment commitment.

   b.  the applicant failed to acknowledge to Army medical personnel his use of any drugs at the time of his separation physical examination.  Thus, the applicant's argument that he was "not offered treatment to correct the problem" appears hollow. 

3.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The offenses that led to his discharge far outweigh his overall record of service.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

4.  The evidence of record shows the applicant requested upgrade of his under other than honorable conditions discharge on 21 May 1991 and that the ADRB determined the applicant's discharge was proper and equitable.  Therefore, the evidence of record is at odds with the applicant's contention that he was not aware he could appeal the type and character of service of his discharge.
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.



      _______ _   _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)                                         AR20090011815



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ABCMR Record of Proceedings (cont)                                         AR20090011815



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