IN THE CASE OF:	  

		BOARD DATE:	  7 January 2009

		DOCKET NUMBER:  AR20090013226 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD), under honorable conditions.  

2.  The applicant states, in effect, he was in the Army and served honorably for 34 months before he asked to go home.  He claims he had a drug problem but he is now clean and needs his discharge upgraded to assist him in getting a job. 

3.  The applicant provides no documentary evidence 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 and entered active duty 21 January 1980.  He successfully completed basic training at Fort Dix, New Jersey, and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT he was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  

3.  The applicant's record shows he was promoted to the rank of specialist four (SP4) on 1 January 1982, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private first class for cause on 31 January 1981, and again promoted to SP4 on 1 January 1982.  He earned the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 July 1981, for possessing a controlled substance (marijuana).  His punishment for this offense was a forfeiture of $150.00 and
14 days of restriction and extra duty.  

5.  On 1 November 1982, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 134, 80, and 86 of the UCMJ as follows:  Article 134 (two specifications) by wrongfully possessing a habit forming narcotic drug (valium) on or about 3 October 1982, and by wrongfully and unlawfully endeavoring to impede a criminal investigation on or about 5 October 1982; Article 80, by attempting to sell a habit forming drug (valium) on or about 3 October 1982; and Article 86 (four specifications) by failing to go to his appointed place of duty at the time prescribed on 4, 8, 12, and
13 October 1982.  

6.  On 3 November 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and the possible effects of a UOTHC discharge.  The applicant, subsequent to this legal counsel, voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He also acknowledged that by requesting discharge, he was acknowledging that he was guilty of the offense charged, or of a lesser offense included therein, which also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that under no circumstances did he want further rehabilitation because he had no desire to perform further military service.  


7.  The applicant also acknowledged that he understood he could receive a UOTHC discharge and as a result he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He finally acknowledged he understood that he could face substantial prejudice in civilian life as a result of receiving a UOTHC discharge.  

8.  On 5 November 1982, the separation authority approved the applicant’s discharge request and directed that he receive a UOTHC discharge and be reduced to private/E-1.  On 22 November 1982, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 2 years, 
10 months, and 2 days of creditable active military service at the time of his discharge.

9.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge (HD) 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.  
Paragraph 3-7b provides that a GD 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 HD.  A GD 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 served honorably for 34 months was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily 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.  

3.  The applicant's record further shows he voluntarily requested discharge in order to avoid a court-martial that could have resulted in him receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving a UOTHC discharge.  

4.  The applicant's record documents no acts of valor or achievement and shows he accepted NJP prior to committing the offenses that resulted in his discharge.  As a result, given the gravity of the offenses he was charged with, his overall record of service was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge and it is equally clear it does not support an upgrade now.  

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)                                         AR20090013226



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ABCMR Record of Proceedings (cont)                                         AR20090013226


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