IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110012275 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states that during his early stages of his military career, he was very young and had an alcohol and marijuana addiction.  At that time he was stressed from his military occupational specialty (MOS) and this was his way of coping.

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's records show he enlisted in the Regular Army for a period of 4 years on 11 June 1981 at 19 years and 6 months of age and held MOS 19E (Tank Driver).  The highest rank/pay grade he attained during his military service was sergeant/E-5.

3.  On 10 September 1986, he was charged with:

* operating a passenger vehicle on a military installation while he was drunk
* wrongfully using marijuana on a military installation on two separate occasions
* unlawfully carrying a concealed weapon on or about his person, to wit, a .25 caliber pistol

4.  On 29 September 1986, he consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

5.  In his request for discharge, he acknowledged he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood if his request were approved, he might be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge certificate.  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 further acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated he understood that once his resignation was submitted it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over him.  He declined to submit a statement on his own behalf.

6.  His records show his chain of command supported his request for discharge for the good of the service in lieu of trial by court-martial and recommended his discharge under other than honorable conditions.

7.  On 10 October 1986, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200.  The separation authority directed issuance of a discharge under other than honorable conditions and reduction to the lowest enlisted grade.

8.  On 24 October 1986, the applicant was discharged accordingly.  He completed 5 years, 4 months, and 14 days of total active service.

9.  There is no documentation to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

10.  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, an undesirable discharge was considered appropriate at the time.

11.  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 contends that his discharge under other than honorable conditions should be upgraded to a general discharge because he was very young and had an alcohol and marijuana addiction resulting from MOS stress.

2.  There is no evidence the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  He was mature enough to complete training and nearly 5 years of active duty prior to the incidents which led to his discharge.  There is no evidence he referred himself for alcohol or drug dependence treatment.

3.  His record shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

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)                                         AR20110012275



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ABCMR Record of Proceedings (cont)                                         AR20110012275



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