IN THE CASE OF:	  

		BOARD DATE:	    19 April 2012

		DOCKET NUMBER:  AR20110020974 


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. 

2.  The applicant states his rank was below that of a sergeant which required him to receive guidance from a defense attorney.  This did not happen.  There was no representation at the hearing.  Additionally, he was young at the time.  He had a problem that was neglected by the Army and he was not offered any treatment. Nevertheless, he has led an exemplary life since his discharge.  He is happily married and he has received a security clearance to work in nuclear facilities.

3.  The applicant provides a copy of his contractor badge.

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 born on 9 October 1966.  He enlisted in the Regular Army on 19 July 1988 at nearly 22 years of age.  He held military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  On 23 October 1989, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  He was reduced to private (PV2)/E-2.

4.  On 16 January 1990, he participated in a unit urinalysis and his urine sample tested positive for cocaine.

5.  On 20 February 1990, court-martial charges were preferred against the applicant for one specification of wrongfully using cocaine between 9 January and 16 January 1990.

6.  On 20 February 1990, he 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 or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were 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.

7.  In his request for discharge, the applicant indicated he was making this request of his own free will and he 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 of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  Between 21 and 28 February 1990, the applicant's immediate and senior commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge.

9.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's 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.  He further directed the applicant receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  

10.  The applicant was accordingly discharged on 21 March 1990.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time 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 confirms he completed 1 year, 8 months, and 3 days of creditable active service.

11.  On 13 January 1994, the Army Discharge Review Board denied his petition 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 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.  

	a.  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.

	b.  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 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.

2.  With respect to his arguments:

	a.  the applicant was nearly 22 years of age at the time of his enlistment and 23 years of age when he used cocaine the second time.  However, there is no evidence his drug use was caused by his age or that he was any less mature than other Soldiers who successfully completed their term of service.

	b.  contrary to his contentions, the applicant did in fact consult with counsel prior to making a decision for a voluntary discharge from the Army.  He could have elected trial by a court-martial, but he elected did not to do so.  Either way, he made his decision without coercion after consulting with counsel.

	c.  he could have referred himself for drug treatment.

	d.  his post-service achievements are noted; however, they are not sufficiently mitigating to grant him the requested relief.

3.  Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders 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)                                         AR20110020974



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ABCMR Record of Proceedings (cont)                                         AR20110020974



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