IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110015925 


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 (UOTHC) discharge to an honorable discharge.

2.  He states he was not convicted or court-martialed.

3.  He provides his DD Form 214 (Report of Separation 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’s official military records show he enlisted in the Regular Army on 21 July 1982.

3.  The applicant's record documents no acts of valor or service warranting special recognition.
4.  On 27 July 1984, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial due to violation of the following articles of the Uniform Code of Military Justice (UCMJ):  

   a.  Article 111, operating a passenger vehicle while drunk; and 
   
   b.  Article 134, possessing approximately 13 grams of marijuana in the hashish form and possessing drug paraphernalia. 

5.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  The applicant acknowledged he:

	a.  was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  did not desire further rehabilitation or desire to continue in the military;

	d.  understood that if his request was accepted he could be issued a UOTHC discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  indicated he would submit statements on his own behalf; however, his record is void of this statement.

6.  On 31 July 1984, his company and battalion commanders recommended disapproval of his request.

7.  On 6 August 1984, his brigade commander recommended approval of his request with the issuance of a UOTHC discharge.

8.  On 23 August 1984, the separation authority approved his 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 the issuance of a UOTHC discharge.  

9.  On 21 September 1984, the applicant underwent a mental health evaluation in which the attending physician stated he had no significant mental illness, he was able to distinguish right and wrong, and he had the mental capacity to understand and participate in board proceedings.

10.  On 9 November 1984, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 3 months, and 19 days of total active service.  

11.  On 5 December 1986, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life due to such a characterization service.  A UOTHC Discharge Certificate would normally be furnished an individual who was discharged due to conduct triable by court-martial.

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 evidence of record shows the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged 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 laws.  There is no indication that his request was made under coercion or duress.

2.  The evidence of record shows he was charged with operating a passenger vehicle while drunk, possessing approximately 13 grams of marijuana in the hashish form, and possessing drug paraphernalia.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the above, there is no basis for granting him relief.

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)                                         AR20110015925



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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