BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20110000139 


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 discharge to an honorable or general discharge.

2.  The applicant states the record is unjust due to a lack of evidence and he has been a good citizen for the past 10 years.

3.  The applicant provides no additional evidence.

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 10 August 1993.  He was assigned to Headquarters and Headquarters Battery, 5th Battalion, 41st Field Artillery, Germany upon completion of his initial training.
3.  The facts and circumstances of the applicant's discharge proceedings are not in the available records; however, General Court-Martial Order Number 7, issued by Headquarters, 1st Infantry Division, dated 18 April 1996, shows the applicant was arraigned for the following offenses:

* On or about 6 June 1995, he conspired with a Soldier to wrongfully distribute a controlled substance and purchase hashish
* On or about 6 June 1995, he wrongfully distributed 10 grams of marijuana in the form of hashish
* On or about 10 June 1995, he wrongfully distributed 5 grams of marijuana in the form of hashish
* On or about 16 June 1995, he wrongful used marijuana in the form of hashish

4.  On 31 October 1995, after pleading not guilty to all charges, the court-martial convening authority approved the applicant's request for discharge under the provision of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by courts-martial and dismissed the charges without prejudice.

5.  On 24 November 1995, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His records show he was credited with 2 years, 3 months, and 15 days of active service.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

7.  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 under other than honorable conditions is normally considered appropriate.

8.  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.
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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge to an honorable or general discharge.

2.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  

3.  His DD Form 214 shows he was discharged on 24 November 1995 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions discharge.  Discharges under the provisions of Chapter 10 are voluntary requests.  Therefore, the applicant was required to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  In addition, his request would have included an admission of guilt.

4.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during this term of enlistment.

5.  In view of the above, his request should be denied.

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)                                         AR20110000139



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000139



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1