IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019584 


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 that his discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states that he tested positive on a urinalysis for marijuana and was given the choice of resigning his commission or facing trial by court-martial.  He goes on to state that he served efficiently, effectively and with pride during his 10 years of service and while being on a week of leave after commanding a supply company on a field problem he made a drastic mistake that has hurt his heart and mind.  He further states that he deeply regrets the mistake and it was a one-time mistake that covers his entire 10 years of service.  He also states that he loves the military and would gladly and freely put his life on the line for his country.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and five third-party letters of support.

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 was commissioned as a U.S. Army Reserve second lieutenant in the Quartermaster Corps on 12 May 1978.  He was ordered to active duty on 20 May 1978.

3.  He completed the Quartermaster Officer Basic Course at Fort Lee, Virginia and was assigned to Fort Dix, New Jersey for his first duty assignment.  He was assigned as the executive officer of a one-station training unit responsible for training food service personnel.  He was promoted to the rank of first lieutenant on 7 June 1980.

4.  On 30 October 1980, he was transferred to Germany and served in Germany as a supply and distribution officer and a food service officer.  He was promoted to the rank of captain on 1 December 1981 and served in Germany until 1 February 1982 when he was transferred to Fort Lee to attend the Quartermaster Officer Advanced Course.

5.  He completed his training and was assigned to Fort Bragg, North Carolina where he served as a subsistence officer in a Corps Support Command until he was assigned as a headquarters and headquarters company commander in December 1985.  He was flagged pending an investigation for wrongful use of a controlled substance on 29 May 1987.

6.  The facts and circumstances of his discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Nashville, Tennessee on 25 July 1991.  However, his records contain a message from the Commander, U.S. Army Military Personnel Center, dated 29 September 1987, indicating that the applicant’s request for resignation for the good of the service was approved by the Office of the Assistant Secretary of the Army under the provisions of Army Regulation 635-120, chapter 5 and that he would be discharged under other than honorable conditions as soon as possible.

7.  On 21 October 1987, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-120, chapter 5, as directed by Secretary of the Army.  He had served 9 years, 5 months, and 
2 days of active service.

8.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.
9.  Army Regulation 635-120 serves as the authority for the resignation of officers for the good of the service.  It states, in pertinent part, that an officer may submit a resignation for the good of the service when court-martial charges have been preferred against the officer with a view towards trial by a general court-martial.  Commanders will ensure that the officer concerned is afforded legal counsel and that there is no element of coercion in submitting a resignation for the good of the service.  Requests for resignations will be prepared in accordance with figure   5-1 and will include acknowledgements that they have not been coerced with respect to the resignation, that they understand the implications attached to such an action, to include the effects of a discharge under honorable conditions, that they have been afforded the opportunity to present matters in their own defense, and the fact that they have consulted with counsel.  That regulation also provides that regardless of the type of discharge issued, an officer whose resignation for the good of the service is accepted, shall be barred from all rights under laws administered by the Department of Veterans Affairs based on the period of service from which separated.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge proceedings were conducted in accordance with law and regulations in effect with no indication of any violations of the applicant’s rights.

2.  By the applicant’s own admission, he was guilty of the offense for which he was charged and chose to request an administrative discharge (Resignation) rather than risk the consequences of a court-martial and a felony conviction.  

3.  In view of the seriousness of the charges against him, it appears that the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

4.  A condition of submitting a resignation for the good of the service is that the individual concerned must acknowledge that they understand they may be discharged under other than honorable conditions and that they understand the effects of such a discharge.  He was a commissioned officer who chose to request an administrative discharge rather than risk the consequences of a trial by court-martial and the punitive discharge that could have resulted there from.

5.  The applicant was serving as a commander and knowingly violated the trust and confidence placed in him as a commissioned officer by wrongfully using illegal drugs, an offense that he has readily admitted to.  

6.  Careful consideration has been given to the applicant’s supporting documents and contentions as well as his overall record of service.  The available evidence is insufficient to mitigate the applicant's actions coupled with the seriousness of the charges against him.  Accordingly, there appears to be no basis to grant 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)                                         AR20110019584



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ABCMR Record of Proceedings (cont)                                         AR20110019584



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