IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021823 


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 reconsideration of his earlier petition to upgrade his under other than honorable conditions (UOTHC) discharge to a general discharge (GD).

2.  The applicant states:

	a.  the Board failed to consider he was not aware of its statute of limitations;

	b.  the Board indicated his charge sheet was missing from his file and as a result he felt it was necessary to let the Board know he was pending a summary court-martial for having received one positive urinalysis while serving at Fort Lee, VA and two positive urinalyses while serving at Fort Irwin, CA;

	c.  the Board failed to consider he was not offered any treatment for his problem; and

	d.  the Board failed to consider he completed four previous periods of honorable service over a considerable amount of time for which he received four honorable discharges (HDs).

3.  The applicant provides:

* a self-authored statement
* 
four Certificates
* six character reference statements

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090006721 on 11 August 2009.

2.  The applicant submits new arguments that warrant consideration by the Board.

3.  During its original review of this case, the Board determined:

	a.  the applicant's separation under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations;

	b.  there was no evidence that the applicant's request for discharge was coerced or made under duress;

	c.  the applicant's discharge request was made after he had appropriately consulted with a military lawyer, which shows he wished to avoid the court-martial and punitive discharge he may have received;

	d.  by using illegal drugs while serving as a senior noncommissioned officer (NCO), he knowingly risked his career and abused the trust and confidence placed in him as an NCO which resulted in his UOTHC discharge that accurately reflected his misconduct; and

	e.  all requirements of law and regulation were met and his rights were fully protected though out the separation process.

4.  The applicant’s record shows that having honorably served three prior periods of active service, he reenlisted in the Regular Army on 27 February 1990.  He held and served in military occupational specialty 76P (Materiel Control and Accounting Specialist).

5.  The applicant was notified that charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for three violations of Article 112a (wrongful use of a controlled substance).  On 20 April 1993, having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

6.  In his request for discharge he acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UOTHC.  He further elected to submit a statement in his own behalf.  He further stated “under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.”

7.  In his statement, he requested he not receive a UOTHC discharge; that under Army Regulation 635-200, paragraph 10-8, the separation authority may direct an honorable or a general discharge.  He states he entered the military in 1980 and from 1980 to 1992 he has had no disciplinary problems and has had excellent NCO evaluation reports.  He also received many commendations and medals for his duty performance.  He states he has accrued approximately
50 days of leave and that with a UOTHC discharge, he will be ineligible to receive payment for his leave or any type of separation pay.  He further states a UOTHC discharge will severely impact on his ability to obtain employment in the civilian sector and that with his many years of service he does not want to be a burden on his family or society.

8.  On 20 April 1983, having considered the applicant's statement, the separation authority approved the discharge recommendation and directed that he receive a UOTHC discharge under the provisions of Army Regulation 635-200,
chapter 10.  On 23 April 1993, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms that he had completed 12 years and
8 months of total active service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  However, records show he did apply to the ADRB on
23 February 2009 after the ADRB's statute of limitations had expired.

10.  The applicant provides two certificates wherein he received honor and thanks for his selfless-service he performed at his local shelters.  He also provides two certificates of completion in honor of his completion of state and education programs.

11.  The applicant provides six character reference letters from individuals who attest to his post-service accomplishments, upstanding character, integrity, humility, and support his request for an upgrade of his discharge.  In one case, the writer indicates his dissatisfaction with the Board's original decision in this case.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC is normally considered appropriate.

13.  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 contention that his UOTHC discharge should be upgraded to a GD and the evidence he provides were carefully considered.  However, while his post-service accomplishments; self-improvement; and service to his church, local shelters, and other people are noteworthy, it is insufficient to warrant the requested relief.

2.  The applicant’s knowledge of the Board’s statute of limitations had no bearing on the overall decision in his case.  His case was adjudicated on its merits and had there been any substantiated reasons warranting an upgrade of his UOTHC discharge, the Board would have excused his failure to timely file his application in the interest of justice.

3.  The evidence of record confirms the applicant admitted he was guilty of three violations of wrongfully using a controlled substance in his original application 

and these violations are noted in his discharge packet.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  The applicant further stated he desired no additional rehabilitation and had no desire to perform further service.  This confirms he received and subsequently denied rehabilitation for his problem.

4.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  As a result, there remains an insufficient evidentiary basis to support an upgrade of his discharge.

5.  In lieu 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 to amend the decision of the ABCMR set forth in Docket Number AR20090006721 dated 11 August 2009.



      ____________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)                                         AR20100021823



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ABCMR Record of Proceedings (cont)                                         AR20100021823



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