IN THE CASE OF:	  

		BOARD DATE:	    20 January 2011

		DOCKET NUMBER:  AR20100018474 


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 his discharge under other than honorable conditions be upgraded to a general or an honorable discharge.

2.  The applicant states when he was read his rights he was under the influence of cocaine and alcohol.

3.  The applicant provides no additional evidence in support of his application.  In item 9 (In Support of this Application, I Submit as Evidence the Following Attached Documents) of his application he referred to an attached letter.  However, there was no letter attached when his application was received.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 September 1990 for a period of 4 years.

2.  On 19 April 1991, the applicant was assigned to Battery B, 6th Battalion, 52nd Air Defense Artillery, in Germany.  On 13 September 1991, the applicant was assigned to Headquarters and Headquarters Battery, 5th Battalion, 7th Air Defense Artillery, in Germany.  He was on temporary duty to Saudi Arabia from 26 September 1991 to 9 February 1992.

3.  On 18 August 1993, court-martial charges were preferred against the applicant for:

* two specifications of wrongful distribution of cocaine
* one specification of wrongful use of cocaine

4.  The applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate

5.  In addition, the applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

6.  The applicant submitted two statements in his own behalf.

	a.  He stated he had always been a team player and supported the Army on any given mission.  He deployed to Saudi Arabia in support of Operations Desert Shield and Desert Storm.  He makes no excuses for his actions and accepts full responsibility for them.  He stated he did not want to go to a court-martial.  His wife had ovarian cancer and he did not want to leave her.  He was fully aware of the serious nature and consequences of a charge of distribution.  He understood that if his request for discharge were approved he might receive a discharge under other than honorable conditions.

	b.  The applicant's wife stated she had ovarian cancer and needed the applicant to help and support her through her treatments.  She stated they were going to stay in Germany until she could get well again.  She stated the applicant was a good person and just messed up one time.

7.  On 30 August 1993, the appropriate authority approved the applicant's request for discharge for the good of the service, directed the applicant be reduced to private/pay grade E-1, and directed he receive an under other than honorable conditions discharge.
8.  On 7 October 1993, the applicant received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

9.  On 7 October 1993, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.  He completed 3 years and 11 days of active service that was characterized as under other than honorable conditions.

10.  On 26 October 2009, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request for discharge upgrade.  The ADRB determined the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  References:

	a.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  Army Regulation 635-200 states 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.

	c.  Army Regulation 635-200 states 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 contends his discharge under other than honorable conditions should be upgraded to a general or an honorable discharge because he was under the influence of cocaine and alcohol when he was read his rights.

2.  The statements submitted by the applicant and his wife with his request for discharge were reviewed.  The applicant wanted to get out of the Army and understood the consequences of an under other than honorable discharge.  The applicant's wife stated he had only messed up one time.  He was not discharged by reason of drug-related offenses, he was discharged because he requested a discharge in lieu of court-martial.

3.  The applicant's voluntary request for discharge 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.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  There is no evidence of procedural or other errors that would have jeopardized his rights.

5.  The ABCMR does not upgrade a properly-issued discharge solely based on the passage of time.  The serious nature of the charges preferred against the applicant justifies his under other than honorable conditions discharge.  Therefore, there is insufficient substantive evidence on which to base an upgrade of his discharge to either a general or an honorable discharge.

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)                                         AR20100018474



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018474



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1