IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100009147 


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states he was accused of distributing drugs by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID).  They claimed to have pictures of him distributing cocaine to an undercover agent but the allegations were false and the only thing he was guilty of was hanging around with the wrong crowd.  There was a Sergeant H in his unit who was arrested for cocaine distribution while in the field. His wife was also in the military and both of them were convicted of cocaine distribution.  The allegations against him began due to his association with them. He contends he always did what he was told and never received an Article 15 or any other kind of disciplinary action.  CID scared him really bad and told him that if he took the under other than honorable conditions discharge in lieu of a court-martial he would be able to get his discharge upgraded in 6 months to a year but that was not true.  He adds he took the deal not because he was guilty but because he thought that if they could arrest Sergeant H and his wife while in the field he did not stand a chance.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2A (Personnel Qualification Record), rebuttal letter to a General Officer Letter of Reprimand (GOLOR), and a city of Columbus, Georgia Recorder's Court statement in support of this 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 enlisted in the Regular Army on 17 September 1985.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).

3.  On 21 November 1986, he received a GOLOR for drunk driving.  He submitted a rebuttal to the GOLOR in which he requested the GOLOR be filed in the restricted section of his military file.

4.  A DD Form 458 (Charge Sheet) is not available in the applicant's Official Military Personnel File; however, his record shows that after consulting with legal counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 because charges were preferred against him under the Uniform Code of Military Justice for one specification of violation of Article 112a (wrongful use, possession, etc., of a controlled substance), which authorized the imposition of a bad conduct or dishonorable discharge.

5.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished a UOTHC Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge and that there was no automatic upgrade or review by any Government agency of a less than honorable discharge.  He elected not to submit a statement in his own behalf.

6.  On 3 January 1989, the separation authority approved his request for discharge and directed his service be characterized as under other than honorable conditions.  On 31 January 1989, he was discharged accordingly.

7.  In support of this application, he provided a statement from the city of Columbus, Georgia Recorder's Court, dated 14 July 2005, in which the clerks' office indicated that based on the information provided to them, they were unable to locate any information pertaining to the applicant's arrest on 26 October 1986 for driving while intoxicated.

8.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 26 November 1997.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides 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, 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.

11.  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 has been carefully reviewed.


2.  He contends the allegations that he distributed a controlled substance to an undercover agent were false; however, he voluntarily requested to be discharged for the good of the service in lieu of trial by court-martial after charges were preferred against him for this offense.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary and the service member must admit guilt to the court-martial charges.  

3.  The Army has never had a policy to upgrade a discharge after a specific period of time, as he acknowledged in his request for discharge.

4.  In the absence of evidence to the contrary, his voluntary separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  In view of the above, there is no basis to grant his request for a discharge upgrade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION
________  ________  ________  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)                                         AR20100009147



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A