IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20110014962 


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 to an honorable discharge.

2.  The applicant states he has lived with this disgrace along with the mistake he made while in the service.

3.  The applicant did not provide any 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 30 August 1977 and he held military occupational specialty 95C (Corrections Specialist).  He served through 

multiple reenlistments in a variety of stateside and overseas assignments, including Germany and Korea, and he attained the rank/grade of staff sergeant (SSG)/E-6.  He was assigned to the 705th Military Police Battalion, Fort Leavenworth, KS.

3.  In March 1997, an investigation conducted by the Fort Leavenworth Resident Agency, U.S. Army Criminal Investigation Command (CID), established probable cause to believe the applicant wrongfully possessed 5.56 grams of crack cocaine and a smoking device containing cocaine residue.  Further, the investigation revealed he had wrongfully used cocaine at his residence after he tested positive for cocaine during a command-directed urinalysis conducted on 7 March 1997.

4.  On 15 April 1996, his command preferred court-martial charges against him for:

* one specification of wrongfully possessing crack cocaine with intent to distribute
* one specification of using crack cocaine

5.  On 13 May 1996, the applicant consulted with legal counsel and he 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 the procedures and rights 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.

6.  In his request for discharge, the applicant indicated he was making this request of his own free will and had not been coerced by any person whatsoever. He also understood that by requesting discharge, he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 20 May 1996, the applicant's immediate, intermediate, and senior commanders recommended approval of the applicant's discharge with issuance of an under other than honorable conditions discharge.
8.  On 10 June 1996, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service in accordance with Army Regulation 635-200,
chapter 10, with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.  On 14 June 1996, the applicant was accordingly discharged.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further shows he completed 18 years, 9 months, and 15 days of creditable active service.

10.  There is no indication he petitioned 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 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.

12.  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.

13.  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 should be upgraded.

2.  The applicant's record shows he was charged with the commission of an offense 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.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled 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)                                         AR20110014962



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ABCMR Record of Proceedings (cont)                                         AR20110014962



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