IN THE CASE OF:	   

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110019051 


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, in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states much has changed since his discharge and in the last 
17 years he has been a responsible productive citizen in society.  He was discharged due to a positive drug test but he has not used drugs or alcohol since 6 September 1994.  He returned to school, received his bachelor degree in Sociology in December 2002, and holds a certification in Alcohol and Drug counseling.  He currently works as an Addiction Counselor at Turning Point Hospital in Moultier, GA and has worked there since 1995 providing treatment to active duty service members at Fort Benning, GA. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 12 March 1993.

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 22 February 1984.  He completed his initial training and he was awarded military occupational specialty (MOS) 52D (Power Generation Equipment Repairer).

3.  The facts and circumstances of the applicant's discharge proceedings are not available; however, his record contains a:

   a.  DA Form 2627 (Record of Proceeding Under Article 15, Uniformed Code of Military Justice (UCMJ)) which shows he accepted punishment under Article 15, UCMJ, for the wrongful use of marijuana/hashish, a Schedule I Controlled Substance on 4 December 1985; and
   
   b.  Letter of Reprimand, dated 16 November 1988, issued to him by the acting commander, Headquarters, 2nd Armor Division, Fort Hood, TX, for driving while intoxicated.
   
4.  On 12 March 1993, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  His records show he was credited with 
9 years and 21 days of active duty service.

5.  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.  

6.  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.



7.  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.

8.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge to honorable.

2.  His post service achievements are commendable but do not serve as a sufficient basis to upgrade his discharge.

3.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, the available evidence shows he committed two prior alcohol and drug related offenses before he was discharged on 12 March 1993.

4.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, with an under other than honorable conditions discharge.  Discharges under the provisions of chapter 10 are voluntary requests.  Therefore, he was required to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  In addition, his request would have included an admission of guilt.

5.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during this term of enlistment.

6.  In view of the above, his request should be denied.
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)                                         AR20110019051





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ABCMR Record of Proceedings (cont)                                         AR20110019051



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