IN THE CASE OF:	  

		BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110011878 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  He states he was a good Soldier and had planned to make the military a career.  He underwent drug testing by the same noncommissioned officer who was having an affair with his wife.  

3.  He contends he was pending trial by court-martial for the alleged drug use when his mother had a stroke.  He became confused and upset, so he requested discharge in lieu of trial by court-martial. 

4.  He did not provide any additional documentation.  

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.  His record shows he enlisted in the Regular Army on 10 November 1981.  After completion of training, he served in military occupational specialty 76V (Materiel Storage and Handling Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows the following:

* Item 9 (Awards, Decorations and Campaigns) – does not record any special recognitions, acts of valor, or campaign credit
* Item 18 (Appointments and Reductions) – shows his highest grade was specialist/E-4

4.  His record contains a DD Form 458 (Charge Sheet), dated 26 June 1985, which shows he was charged with the following:

   * wrongful use of marijuana between 13 October and 13 November 1984
* going absent without leave (AWOL) from 14 to 18 June 1985

5.  On 11 October 1985, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service, in lieu of trial by court-martial.  In his request, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a Bad Conduct Discharge or a Dishonorable Discharge.  

6.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge UOTHC and of the rights available to him.  He also stated he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

7.  The applicant further indicated that he understood that he could encounter substantial prejudice in civilian life because of a UOTHC discharge.  After being advised of his rights, he elected to submit a statement on his behalf; however a copy of his statement is not in the available record.

8.  His chain of command recommended approval of his request for discharge for the good of the service and that he be discharged UOTHC.  The appropriate

approval authority approved the applicant's request for discharge under the provisions of chapter 10 of Army Regulation 635-200.  He directed the applicant be discharged UOTHC and be reduced to the grade of private/E-1.

9.  Accordingly, on 1 November 1981, he was discharged UOTHC, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service- in lieu of trial by court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 11 months, and 
17 days of net active service and had a total of 5 days of lost time due to AWOL. 

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.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may have submitted, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge UOTHC was normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because he was a good Soldier, but was allegedly charged with an offense of drug use, which he did not commit.   

2.  The evidence of record shows he was charged with drug use as a result of a urinalysis test and with going AWOL.  Both offenses are violations of the UCMJ for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service.  His request for discharge was approved.

3.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally UOTHC and the evidence shows that the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

5.  His record does not contain any acts or special recognition which would warrant an upgrade of his discharge.  

6.  As such, there is no basis for granting his request for an upgrade of his discharge to either fully honorable or general, 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 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)                                         AR20110011878





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ABCMR Record of Proceedings (cont)                                         AR20110011878



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