IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20110023764 


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 an honorable discharge (HD) and his charge of unlawful distribution of marijuana be removed.

2.  The applicant states that he has a personal letter and references attached.

3.  The applicant provides a one-page self-authored letter and five 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 enlisted in the Regular Army, on 22 March 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31V (Unit Level Communications Maintainer).  The highest rank/grade he attained while serving on active duty was specialist four/
E-4.  

3.  On 11 February 1993, the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) launched an investigation.  The applicant was suspected of the following offenses: 

* Conspiracy to distribute a controlled substance
* Conspiracy to commit larceny
* Attempted larceny
   
4.  On 11 March 1993, charges were preferred against the applicant for conspiring to commit an offense of larceny under the Uniform Code of Military Justice (UCMJ).

5.  On 19 March 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6.  The applicant provided a one-page self-authored letter which essentially explained that he received an HD during his first enlistment.  Further, he states, in effect, two weeks before his discharge he went to a person who owed him money and requested full payment.  The applicant states, in effect, the person who borrowed money from him could not pay it back unless he assisted him in finding marijuana.  The applicant states, in effect, that he saw an opportunity to receive his money; however, he was later arrested by the military police for "a drug deal gone bad."  Further, he states he was told by his commanding officer that a "UOTHC discharge would not affect him only a dishonorable would hurt him."  The applicant states, in effect, many years later after attempting to get a job, his record still reflects unlawful distribution of marijuana and his credibility is in question.

7.  In his request for discharge, the applicant indicated he understood that by requesting a 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 his 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 laws.

8.  On 26 March 1993, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he receive a UOTHC discharge.  On 31 March 1993, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed 4 years and 9 days of total creditable active military service with no lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  There is no evidence that shows that the applicant requested to remove his unlawful distribution of marijuana offense by requesting an amendment or removal of the titling actions through the CID.

12.  The applicant provided five letters of support which essentially explained that he is of excellent character, operates with integrity, a hard worker, and a trust-worthy friend.

13.  Army Regulation 195-2 (Criminal Investigation Activities), paragraph 4-3d(1), states that the disclosure of criminal information originated or maintained by CID may be made to any Federal, State, local, or foreign law enforcement agency that has an investigative or law enforcement interest in the matter disclosed, provided the disclosure is not in contravention of any law, regulation, or directive as applied to law enforcement activities.  Disclosures under this paragraph to a non-Department of Defense law enforcement element are a routine use under the Privacy Act.

14.  Department of Defense Instruction (DODI) 5505.7, 14 May 1992, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an Report of Investigation of suspected criminal activity at some future time for law enforcement and security purposes.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling, simple stated, is if there is reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the Government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause).

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 
10 provides 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

17.  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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UOTHC discharge be upgraded to an HD was carefully considered, and it was determined that there is insufficient evidence to support this request.

2.  Discharges under the provisions of chapter 10, Army Regulation 635-200, are voluntary requests for discharge in lieu of trial by court-martial.

3.  Titling is an administrative action based on credible evidence showing that a subject committed a criminal offense.  Once titled, the person remains titled even if it is later determined the person did not commit the offense under investigation.

4.  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.  Based on his record of indiscipline, 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 a general or an HD.
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)                                         AR20110023764





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ABCMR Record of Proceedings (cont)                                         AR20110023764



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