IN THE CASE OF:	  

		BOARD DATE:	    3 February 2011

		DOCKET NUMBER:  AR20100017888 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that:

	a.  although his roommate sold marijuana to another individual, he had no involvement with that activity;

	b.  he was wrongfully discharged for being in the wrong place at the wrong time;

	c.  he was awarded various citations and maintained an exemplary service record until this situation occurred; and

	d.  he has been an outstanding member of his community since his discharge.

3.  The applicant provides:

* extracts of various Official Military Personnel File (OMPF) documents
* four character reference statements

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 record shows he enlisted in the Regular Army on 10 August 1982.  He served in military occupational specialties 57H (Terminal Operations Coordinator) and 64C (Motor Transport Operator).

3.  The applicant's record shows he was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 January 1984, and this is the highest rank/grade he attained while serving on active duty.  It also shows he earned the following awards:

* Parachutist Badge
* Army Service Ribbon 
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  A U.S. Army Criminal Investigation Command (USACIDC), also known as CID, Report of Investigation - Interim Report, dated 14 January 1985, shows the applicant sold an estimated 19 grams of marijuana to a semi-covert member of the drug suppression team for $60.00 of CID funds, a violation of Article 112a (wrongful possession and distribution of marijuana).

5.  On 11 February 1985, the Commander, 403rd Transportation Company, prepared a letter preferring a court-martial charge against the applicant.

6.  The applicant's OMPF is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows 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 of trial by court martial.

7.  The applicant's DD Form 214 also confirms he was discharged on 2 April 1985 after completing 2 years, 7 months, and 23 days of creditable active military service.  It also confirms he received a UOTHC discharge.

8.  The applicant provides four character references from individuals who state the applicant:

* shows great work ethics on the job
* is loyal to his family
* visits and ensures the safety and well being of his parents
* is helpful and reliable
* is faithful in his attendance and support to his church
* provides automotive repair assistance to community members

9.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

10.  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.  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 (HD) or a general discharge (GD) is authorized, a UOTHC is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7b provides that a GD 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 record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, 

requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  In connection with such a discharge, the applicant 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 separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

3.  Lacking evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is further presumed the UOTHC discharge the applicant received was appropriate considering the offense for which he was discharged and the overall quality of his service.

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)                                         AR20100017888



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ABCMR Record of Proceedings (cont)                                         AR20100017888



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