IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100010473 


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 discharge to a general discharge.

2.  The applicant states he is apologizing for the errors and mistakes he made while serving.  He also states he was informed at the time of his discharge that his discharge would be upgraded to honorable.

3.  The applicant provides a copy of his DD Form 794A (Discharge Under Other Than Honorable Conditions).

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 military records show that he enlisted in the Regular Army on 16 September 1983.  He completed initial entry training, was awarded the military occupational specialty of equipment records and parts specialist, and attained pay grade E-3.

3.  His records show he was charged with wrongfully distributing .89 grams of marijuana and wrongfully possessing about 1 gram of marijuana with the intent to distribute the said marijuana on or about 14 July 1985.

4.  On 21 August 1985, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He further acknowledged that by submitting his request for discharge, he was admitting to being guilty of the charges against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

5.  The applicant consulted with counsel and he was advised of his rights.  He acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veteran's Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of this discharge.

6.  On 29 August 1985, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 20 September 1985, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The DD Form 214 he was issued at that time shows he had completed a total of 2 years and 5 days of active service.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an under other than honorable conditions discharge was appropriate.

10.  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 records show he was charged with wrongfully distributing marijuana and wrongfully possessing marijuana with the intent to distribute it.  He voluntarily requested discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The Army does not have, and has never had, a policy to automatically upgrade a discharge based on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  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)                                         AR20100010473



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ABCMR Record of Proceedings (cont)                                         AR20100010473



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