IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110013139 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was never given any substance abuse counseling before his discharge.  He was never tested for drug use and he submitted a written statement in his own behalf on the night of his arrest.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 5 September 1984.  He completed training and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He was assigned to the 92nd Engineer Battalion, Fort Stewart, GA.

3.  On 16 November 1985, he was arrested by the Fort Stewart Military Police for conspiracy to possess and distribute marijuana and cocaine; wrongful possession, use, and distribution of marijuana; and for wrongful possession and distribution of cocaine.  However, because the offense took place off post with the Savannah Police Department having jurisdiction, no further action under the Uniform Code of Military Justice (UCMJ) was taken.

4.  On 8 May 1986, he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for twice failing to pay just debts.

5.  On 7 July 1986, his immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing his extensive misconduct of possession, use, and distribution of drugs; multiple instances of dishonorably failing to pay just debts; and substandard performance.  He was furnished with a copy of this bar and he elected not to make a statement in his own behalf.  The bar was ultimately approved by the appropriate authority on 18 July 1986.

6.  On 16 July 1986, court-martial charges were preferred against the applicant for one specification each of:

* wrongfully using marijuana
* wrongfully distributing cocaine
* wrongfully distributing marijuana
* wrongfully conspiring with another to distribute marijuana and cocaine

7.  On 6 August 1986, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser 

included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if the 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation or to perform further military service.  He elected not to submit a statement in his own behalf.

9.  On 8 August 1986, his immediate and intermediate commanders recommended approval of his discharge; however, the senior commander recommended disapproval due to the nature, gravity, and circumstances surrounding his offense.

10.  On 2 September 1986, the separation authority disapproved the discharge.

11.  On 18 September 1986, an appointed investigating officer recommended convening a special court-martial empowered to adjudge a bad conduct discharge.

12.  On 29 September 1986, he again consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he again requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

13.  In his request for discharge, he again acknowledged he understood by requesting a discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if the 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation or to perform further military service.  He elected not to submit a statement in his own behalf.

14.  On 27 and 30 October and 6 November 1986, his immediate, intermediate, and senior commanders recommended approval of his discharge.

15.  On 14 November 1986, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 24 November 1986, he was discharged accordingly.

16.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 2 years, 2 months, and 20 days of creditable active service.

17.  On 22 December 1995, the Army Discharge Review Board denied his request for an upgrade of his discharge.

18.  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.

19.  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.  It 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.

20.  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's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges 

under the provisions of Army Regulation 635-200, chapter 10, 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.  Further, his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.

3.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either an honorable or 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 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)                                         AR20110013139



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ABCMR Record of Proceedings (cont)                                         AR20110013139



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