IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110013194 


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. 

2.  The applicant states he still fears for his life today.  He was stationed in Germany at the time and did well in his military service until he made a mistake and got involved in drugs.  There were many other Soldiers, officers and enlisted, involved in drugs within the community at the time.  He was investigated by agents of the Criminal Investigation Command (CID) and even helped CID agents bust some Soldiers who were using or selling the drugs.  Others became nervous.  Some became mad and even threatened him when they found out he was a snitch.  He was ultimately discharged without fully understanding what his discharge consisted of.  He now volunteers to help disabled veterans and stays clear of the law.  But he stills fears for himself and his family because some of the people he snitched on continue looking for him.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter of appreciation
* Certificate of achievement
* Character reference letter
* Certificate of appreciation
* Photograph of Soldiers undergoing in ranks inspection
* Photograph of an individual

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 on 23 October 1981 and held military occupational specialty 11B (Infantryman).  He also completed DRAGON Gunnery training and was awarded an additional skill identifier.

3.  He served in Germany from 13 February 1983 to 20 October 1984.  He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.  The highest rank/grade the applicant attained during his military service was specialist four/E-4.

4.  On 3 January 1984, a CID investigation disclosed that subsequent to receiving information from a confidential source, the applicant's unit commander authorized the search of the applicant's wall locker which disclosed approximately 15 grams of marijuana in the hashish form, 2 grams of leaf marijuana, and a smoking pipe with marijuana residue.  Due to the amount and fashion it was packaged, the marijuana was not considered for personal use and that the applicant intended to sell it for financial gain.  Additionally, he admitted intending to sell the hashish.

5.  On 27 January 1984, subsequent to a complete Article 32 investigation, court-martial charges were preferred against the applicant for

* one specification of violating a general regulation by possessing drug abuse paraphernalia
* one specification of possession of marijuana in the hashish form with intent to distribute
* two specifications of wrongfully possessing marijuana

6.  On 31 January 1984, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge he indicated he understood or acknowledged:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he was advised of the implications that are attached to his discharge and understood his discharge would be under other than honorable conditions
* by requesting 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
* that if the discharge request were approved, he could be deprived of many or all Army benefits and/or that he could be ineligible for many or all benefits administered by the Veterans Administration
* that if the discharge request was approved, he could be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  His immediate commander recommended disapproval of the request for discharge and stated that the applicant admitted he intended to sell the drugs found in his wall locker to other Soldiers.  He also admitted he had been selling drugs to other Soldiers in the community for a long time.  He should be tried by a general court-martial which would act as a deterrent to other Soldiers.

9.  His intermediate commander also recommended disapproval and stated that the applicant was an admitted drug dealer.  He should stand trial and serve the punishment awarded by the Court.  Approval of his discharge would not be in the best interests of good order and discipline of the unit or the Army.

10.  His senior commander recommended approval of the discharge in lieu of the court-martial.  He stated that he had considered the applicant's efforts in assisting CID agents that led to the prosecution of various Soldiers and provided information to CID concerning drug activities within the community.  Due to the nature of his case, the senior commander thought it was in the best interests of the Army if the applicant were immediately separated.  

11.  On 19 June 1984, 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 and directed that he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  On 16 July 1984, the applicant was accordingly discharged.

12.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 2 years, 8 months, and 24 days of creditable active military service.

13.  On 28 October 1988, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  He submitted photographs of Soldiers and purportedly himself.  He also submitted:

	a.  Letter of appreciation, dated 13 October 1983, from the Bamberg Deputy Community Commander acknowledging the applicant's efforts within the community.

	b.  Certificate of achievement, dated 26 July 1983, for outstanding performance from 18 to 27 July 1983.

	c.  Character reference letter, dated 27 April 2011, from an individual who acknowledges the applicant's efforts in volunteering and helping other veterans.  

	d.  Certificate of appreciation, dated May 2010, acknowledging his efforts in a headstart program.

15.  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, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 his under other than honorable conditions discharge should be upgraded. 

2.  The applicant was charged with the commission of an offense punishable under the UCMJ 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.  Further, his discharge accurately reflects his overall record of service.

3.  The discharge approval authority considered the assistance he rendered to CID when he approved his discharge and immediate separation rather than retain him for court-martial per his chain of command’s recommendations, which could have put his life in far further danger.

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.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to a general or an honorable 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)                                         AR20110013194



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013194



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1