IN THE CASE OF:	

		BOARD DATE:	 21 January 2010 

		DOCKET NUMBER:  AR20090013293 


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 1989 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he tested positive on a urinalysis and under those conditions the discharge was normally a general discharge under honorable conditions.  He states that he believes the stress of being assigned to the 82nd Airborne Division contributed to his substance abuse.

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 8 December 1983.  He was trained as a supply specialist and in July 1986 reenlisted.  In January 1987 was assigned to the 82nd Airborne Division after serving one tour of duty in Germany and a tour of duty at Fort Hood, Texas.  In June 1987 he was promoted to pay grade E-5.  His personal decorations include an award of the Army Good Conduct Medal for the period December 1983 to December 1986.

3.  A DD Form 458 (Charge Sheet) dated 20 July 1989 shows the applicant was charged with wrongfully using cocaine, wrongfully distributing cocaine, unlawfully striking a junior enlisted Soldier, impeding an investigation by promising that same junior enlisted Soldier money if he would falsely testify when called as a witness, and communicating a threat to that junior enlisted Soldier if he did not falsely testify.

4.  The applicant’s file does not contain evidence of a positive urinalysis test.

5.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf.

6.  On 13 September 1989 the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

7.  The applicant was accordingly discharged on 10 October 1989 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with completing 5 years, 10 months, and 3 days of total active service.

8.  On 22 March 1993 the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.

9.  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.

10.  Army Regulation 635-200, in effect at the time, stated that first-time drug offenders in grades E-5 through E-9 would be processed for separation upon discovery of a drug offense under the provisions of chapter 14, Section III (Acts or Patterns of Misconduct), when charges will not be referred to a court-martial authorized to impose a punitive discharge.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 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's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would have jeopardized his rights.

2.  The applicant’s argument that a positive urinalysis test normally warrants only a general discharge is without foundation.  There is no evidence the applicant’s charges stemmed from a positive drug urinalysis and even if they had, the seriousness of the charges were sufficient to warrant preferral of court-martial charges.  Additionally, contrary to the applicant’s contention that a positive urinalysis normally warranted a general discharge, Soldiers discharged under the provisions of chapter 14, Army Regulation 635-200, for a drug offense normally received a discharge under other than honorable conditions.  In the applicant’s case he was charged not only with use of cocaine but with distribution in addition to other charges related to the suppression of truthful testimony.  Clearly the characterization of his discharge was appropriate.

3.  The applicant provided no proof and the record does not substantiate that the stresses of being assigned to Fort Bragg impacted his ability to serve honorably.  Even if true, there is no evidence the applicant attempted to resolve his problems through his chain of command, chaplain, medical facility, or other valid support mechanisms.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090013293



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ABCMR Record of Proceedings (cont)                                         AR20090013293



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