IN THE CASE OF:
BOARD DATE: 2 November 2010
DOCKET NUMBER: AR20100011435
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 discharge.
2. The applicant states he made one bad decision which has ruined his life. He'd like a discharge upgrade so he can receive veterans' benefits.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant served in the Regular Army from 3 June 2002 to 4 April 2005.
2. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 28 September 2004 for:
* failure to go to his appointed place of duty on 14 September 2004
* wrongful use of marijuana on two occasions between July 2004 and August 2004
* wrongful use of cocaine between 14 July 2004 and 16 August 2004
3. On 15 February 2005, court-martial charges were preferred against the applicant for:
* absence without leave between 6 October 2004 and 10 February 2005
* wrongful use of cocaine between 26 and 29 September 2004
* wrongful use of a methamphetamine between 26 and 29 September 2004
4. On 9 March 2005, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial. In his request, he acknowledged that he was guilty of the charge(s) against him which authorized the imposition of a bad conduct or dishonorable discharge and that he did not desire further rehabilitation or have any desire for further military service. He stated he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.
5. On 16 March 2005, the separation authority approved the applicant's request for discharge. On 4 April 2005, he was discharged under other than honorable conditions.
6. The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. After considering his case on 15 July 2009, the ADRB denied his request.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate.
8. Army Regulation 635-200 provides guidance on characterization of service.
a. Paragraph 3-7a states 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.
b. Paragraph 3-7b states 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 HD. 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 requests a discharge upgrade.
2. The applicant was a habitual drug abuser, having received NJP for his drug abuse in September 2004 and preferral of court-martial charges in 2005 for drug abuse and a lengthy period of AWOL.
3. The applicant's misconduct marked him as a substandard Soldier. His voluntary request for separation under the provisions of Army Regulation
635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.
4. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid a trial by court-martial and the punitive discharge that he might have received. Given the seriousness of his misconduct, the acceptance of his request demonstrated a high degree of leniency.
5. This Board does not upgrade discharges solely for the purpose of qualifying for benefits.
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) AR20100011435
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ABCMR Record of Proceedings (cont) AR20100011435
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