IN THE CASE OF:	

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090012251 


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

2.  The applicant states that his discharge was improper because it was based on issues surrounding his self-reported substance abuse and that his discharge should have focused on treatment as it related to substance abuse.  Nevertheless, he has been substance-free for 8 years and he has recently received certification as a certified substance abuse counselor from the State of Illinois.  He adds that he is aware that his certification did not occur during his military service; however, his certification proves that he has changed and his training should also be helpful to other veterans.  He concludes that when reviewing his discharge, the Board should not limit itself to the substance abuse issue; it should rather look at his entire service including both his Army National Guard service and active duty service.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 22 July 1992 and 
4 December 1982, 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 records show he initially enlisted in the Minnesota Army National Guard (MNARNG) in January 1982.  He subsequently entered active duty for training (ADT) on 1 August 1982, completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 36C (Wire Systems Installer/Operator).  He was honorably released from ADT on 4 December 1982 to the control of his MNARNG unit.

3.  The DD Form 214 he was issued shows he completed 4 months and 4 days of creditable active service.  This form also shows he was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant’s records also show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 27 February 1986 for a period of
3 years on 27 February 1986 in the rank/grade of private (PV2)/E-2.  He was discharged from the USAR DEP on 3 April 1986 and he enlisted in the Regular Army (RA) on 4 April 1986 for a period of 3 years as a PV2/E-2.  He was subsequently trained in and was awarded MOS 31V (Unit Level Communications Maintainer).  He also executed two 2-year reenlistments in the RA on 23 June 1989 and 11 June 1991 and he attained the rank/grade of sergeant (SGT)/E-5.

5.  The applicant’s records also show he served in Germany from 1 August 1986 to 10 October 1990.  His additional awards and decorations include the Army Achievement Medal (3rd Oak Leaf Cluster), Good Conduct Medal (2nd award), National Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

6.  On 29 May 1992, the applicant departed his Fort Irwin, CA, unit in an absent without leave (AWOL) status.  He returned to his unit on 4 June 1992.

7.  On 1 July 1992, the applicant again departed his Fort Irwin unit in an AWOL status.  He was subsequently arrested and confined by civil authorities and he 
was returned to military control on 12 July 1992.  The facts and circumstances surrounding his arrest/confinement by civil authorities are not available for review with this case.
8.  On 15 July 1992, court-martial charges were preferred against the applicant for one specification of violating Article 112a (wrongful use and/or possession of a controlled substance) of the Uniform Code of Military Justice (UCMJ) and one or more specifications of violating Article 86 (AWOL) of the UCMJ.  A copy of the charge sheet is not available for review with this case.

9.  On 15 July 1992, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel and of his own free will without being subjected to any coercion whatsoever by any person, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of for the good of the service - in lieu of court-martial.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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.

11.  On 15 July 1992, after considering the applicant’s entire record and his potential for rehabilitation, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions characterization of service. 

12.  On 16 July 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 22 July 1992.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 6 years, 7 months, and 6 days of creditable active military service and he had 17 days of lost time.

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s15-year statute of limitation.

14.  The applicant submitted a copy of a certificate, dated 26 April 2009, that shows his State of Illinois certification as an Alcohol and Other Drug Abuse Counselor.

15.  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.

16.  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.

17.  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’s contention that his discharge should be upgraded because he had a substance abuse problem at the time and the evidence he submitted 
together with his overall service record was carefully considered; however, it was found not sufficiently mitigating in upgrading his discharge.  The applicant, then a noncommissioned officer and leader of Soldiers, had many legitimate avenues through which he could have received assistance or relief for his alleged substance abuse, had he chosen to use them.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general, under honorable conditions or 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)                                         AR20090012251



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ABCMR Record of Proceedings (cont)                                         AR20090012251



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