IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110013972 


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 the basis for his request is because "the private was caught lying to the judge and the case was thrown out."  He further states all documents pertaining to his case were lost and since there was no proof of the charges all charges were dropped.

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 on 3 September 1982.  He completed initial entry training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  A DD Form 458 (Charge Sheet), dated 3 March 1983, shows court-martial charges were preferred against the applicant for 6 specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ) by:

	a.  wrongfully possessing some amount of marihuana, with intent to distribute, on 10 February 1983;

	b.  wrongfully distributing some amount of marihuana on 10 February 1983;

	c.  knowingly and wrongfully using marihuana on 10 February 1983;

	d.  wrongfully possessing some amount of marihuana, with intent to distribute, on 15 February 1983;

	e.  wrongfully distributing some amount of marihuana on 15 February 1983; and

	f.  wrongfully and unlawfully arranging for two other Soldiers to engage in sexual intercourse with a prostitute on 19 February 1983.

4.  Following an investigation, his chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.

5.  On 5 April 1983, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

6.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if 

his discharge request were 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 laws.

7.  The applicant submitted a statement in his own behalf wherein he stated his application for discharge in lieu of trial by court-martial was voluntary, but it was very important to him to receive a general discharge rather than an other than honorable discharge.  He further stated upon entering the Army he immediately distinguished himself through his performance, enthusiasm, and dedication.  He finished in the top 10 percent of his basic training class and he was then selected as an assistant instructor for the next training cycle.  He admitted that what he had done was wrong, he offered no excuses for his mistakes, and he respectfully requested a general discharge from the service so it would be easier for him to reenter the civilian world and get on with his life.

8.  His company, battalion, and brigade commanders recommended approval of his request for discharge for the good of the service with the issuance of an under other than honorable conditions discharge.

9.  On 6 April 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 13 April 1983, the applicant was discharged accordingly.

11.  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.

12.  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.

13.  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.

14.  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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  His record is void of any evidence and he has not provided any evidence showing his court-martial charges were thrown out; therefore, his claim is unsubstantiated.

3.  The applicant's record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation
635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110013972



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ABCMR Record of Proceedings (cont)                                         AR20110013972



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