BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007561 


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 (UOTHC) discharge to a general discharge (GD).

2.  The applicant states he was never convicted of any wrongdoing and he was given the opportunity to receive a chapter 10 discharge instead of a court-martial because his unit commander and first sergeant knew what kind of Soldier he was and that he was not capable of the charge levied against him.  He further states his Department of Veterans Affairs (VA) counselor informed him if the military thought he was guilty, he would have never have been offered a chapter 10.  These comments were included in a continuation to his application that was separated from the application and misplaced during the processing of this case.

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 he enlisted in the Regular Army on 9 February 1982.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and private first class (PFC)/E-3 is the highest rank/grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 10 August 1993, for knowingly and willingly using marijuana, a controlled substance.  His punishment was a reduction to private (PV1)/E-1, forfeiture of $286.00 per month for two months, and correctional custody for
30 days.

4.  A complete separation packet containing all the facts and circumstances surrounding the applicant’s separation processing are not on file in his record.  The record does contain a DD Form 458 (Charge Sheet) showing that on 22 May 1984 court-martial charges were preferred against the applicant for violating the following articles of the UCMJ:

* Article 128, by assaulting another Soldier
* Article 92, by wrongfully and unlawfully possessing drug paraphernalia
* Article 134, by knowingly and unlawfully using marijuana in the hashish form, a controlled substance

5.  The record also contains a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for his discharge.  It confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu to trial by court-martial.  It further shows at the time of his discharge on 3 August 1984 he held the rank/grade of PV1/E-1 and he completed 2 years, 5 months, and 25 days of total active military service.

6.  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

7.  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 it was unjust has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a DD Form 458 confirming court-martial charges were preferred against the applicant for violating three articles of the UCMJ by assaulting another Soldier, wrongfully and unlawfully possessing drug paraphernalia, and knowingly and unlawfully using a controlled substance.  It also contains a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed.

3.  The DD Form 458 in the record and the applicant’s DD Form 214 confirm he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request discharge from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his acceptance of NJP for using illegal drugs.  It further shows he voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.

5.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance in effect at the time and his overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing a GD at the time of discharge, nor does it support an upgrade now.

6.  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)                                         AR20100007561



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR