IN THE CASE OF:	  

		BOARD DATE:	    14 June 2011

		DOCKET NUMBER:  AR20100028842 


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

2.  The applicant states his discharge was unjust because he was not afforded the opportunity to attend a substance abuse program.

3.  The applicant provides a copy of his request for discharge.

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 enlisted in the Regular Army in Philadelphia, Pennsylvania, on 23 April 1979 for a period of 3 years.  He completed one-station unit training as a cavalry scout at Fort Knox, Kentucky, and was transferred to Germany for assignment to a cavalry troop in Schweinfurt on 26 August 1979.

3.  In April 1980, charges were preferred against him for wrongfully possessing 6 grams of marijuana in hashish form and disobeying a lawful order from a superior noncommissioned officer.

4.  On 15 April 1980 after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

5.  The appropriate authority (a major general) approved his request on 14 May 1980 and directed that the applicant be discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions on 4 June 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year, 1 month, and 12 days of total active service.

7.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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 applicant's 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of his misconduct, his undistinguished record of service during such a short period, and the fact that he was charged with possession of drugs.  His service simply did not rise to the level of under honorable conditions.

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)                                         AR20100028842



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ABCMR Record of Proceedings (cont)                                         AR20100028842



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