IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100019980 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was exposed to nerve agents in Iraq during Operation Desert Storm in March 1991.  He needs his discharge upgraded to receive much-needed medical care and potential compensation from the Department of Veterans Affairs (VA).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Office of the Secretary of Defense (OSD) letter
* Permanent Orders 96-01
* DA Form 638-1 (Recommendation for Award of Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal)
* Army Achievement Medal Certificate
* National Personnel Records Center letter

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 record shows he enlisted in the Regular Army on 17 October 1989.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).

3.  On 23 November 1992, court-martial charges were preferred against him for wrongful use of lysergic acid diethylamide (LSD).

4.  On 24 November 1992, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  On 6 January 1993, following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations), chapter 10.

5.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under conditions other than honorable and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

6.  His immediate and intermediate commanders recommended approval of his discharge and recommended his service be characterized as under honorable conditions and that he receive a General Discharge Certificate.

7.  On 12 March 1993, his brigade commander recommended approval of his discharge and stated the applicant's use of LSD warranted the characterization of service of under other than honorable conditions.

8.  On 21 May 1993, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 8 June 1993, he was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 3 years, 7 months, and 22 days of total active service.

9.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Southwest Asia Service Medal with two bronze service stars, Kuwait Liberation Medal, Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Infantryman Badge, Parachutist Badge, and overseas service bar.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant provides a letter from OSD, dated 24 July 1997, informing him his unit may have been exposed to nerve agents while in Iraq in 1991.

12.  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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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 evidence of record shows he was charged with the commission of an offense punishable under the 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.  As such, he voluntarily requested discharge from the Army to avoid a trial by court-martial.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  In view of the foregoing, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.

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 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)                                         AR20100019980



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ABCMR Record of Proceedings (cont)                                         AR20100019980



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