IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110018937 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge. 

2.  The applicant states, in effect, that:

   a.  He served a total of 3 years, 3 months, and 12 days of a 4-year enlistment. His left shoulder was severely injured while serving in the Army and the injury required reconstructive surgery.  He became addicted to Percocet, which is a very powerful and highly addictive pain killer.  He was a combat medic and had access to the doctor's prescription pad and he regretfully took advantage of that access and forged a prescription to get more Percocet.  
   
   b.  At that particular time the Army was downsizing, offering early outs, and closing bases throughout Germany.  He was not given the option of rehabilitation, it was either face a court-martial or be discharged; therefore, he believes the record to be in error.
   
   c.  He was 9 months away from an honorable discharge.  Currently, he cannot utilize his Department of Veterans Affairs (VA) medical/dental benefits, his GI Bill, or his VA Home Loan Guaranty Certificate.  His VA Home Loan Certificate was lost during Hurricane Katrina.  He earned these benefits.  He paid his way through junior college because he couldn't use his GI Bill which is fully vested.  
   
   d.  He now suffers from chronic left shoulder pain due to degenerative disease (Osteoarthritis).  He is throwing himself at the mercy of the Review Board and requests that an upgrade be granted in the interest of justice so he can at least access his VA medical and dental benefits.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 38 pages of civilian Emergency Department Nursing Records documentation pertaining to his left shoulder and migraine headaches

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 military records show he enlisted in the Regular Army, in pay grade E-2, on 9 July 1991, for 4 years.  He completed training and he was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was promoted to pay grade E-4 on 1 August 1993.

3.  A DD Form 458 (Charge Sheet), dated 28 July 1994, shows he was charged with one specification each of the following offenses on or about 11 April 1994:

* wrongful possession of approximately 20 tables of Percocet, a controlled substance 
* with intent to deceive, sign an official prescription form, which was false 
* with intent to defraud, falsely make and utter a certain medical prescription form 

4.  On 28 July 1994, court-martial charges were preferred against the applicant.  The applicant's company commander stated that he felt the applicant was not a candidate for rehabilitation due to his MOS.  
5.  On the same day, the applicant's intermediate and senior intermediate commanders recommended the charges be referred to a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 31 August 1994, after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC discharged, the results of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the VA.  He further acknowledged he understood that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.  He waived his rights and elected to submit a statement in his own behalf.

7.  In his statement, dated 31 August 1994, the applicant requested, in effect, that his command delay the processing of the Chapter 10 paperwork due to the fact that his mother in law suffered a stroke.  He stated that his wife was fully involved with her mother's physical therapy and simple day-to-day activities.  His wife did not drive and his mother-in-law was unable to drive; therefore, the responsibility of shopping and getting his mother-in-law to and from physical therapy twice a week was deemed his responsibility. 

8.  On 31 August 1994, the applicant's company and intermediate commanders recommended approval of the applicant's request and the issuance of a UOTHC discharge.  His request for an extension or return to duty due to a family situation was denied.

9.  On 8 September 1994, the appropriate authority approved the applicant's request, and directed that he be reduced to pay grade E-1, and the issuance of a UOTHC discharge.

10.  On 20 October 1994, accordingly, he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as UOTHC.  He was credited with completing 3 years, 3 months, and 12 days of active service and no time lost.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 specified a member who had 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges were preferred and must include the individual's admission of guilt.  Although an honorable or a general discharge was authorized, an UOTHC discharge was normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  A characterization of under honorable conditions may only be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with one specification each of wrongfully possessing a control substance, making a false official statement and committed forgery.  His company commander stated that he felt the applicant was not a candidate for rehabilitation due to his MOS.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

2.  His contentions were carefully considered; however, the evidence shows he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  In his request, he acknowledged he understood he could be furnished an UOTHC discharge and could be ineligible for VA benefits.

3.  He provides insufficient evidence or a convincing argument to show his discharge should be upgraded or evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting a general or honorable discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

5.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, this Board does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20110018937



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ABCMR Record of Proceedings (cont)                                         AR20110018937



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