IN THE CASE OF:	  

		BOARD DATE:  23 May 2012

		DOCKET NUMBER:  AR20110024162 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states he initially plea bargained for an honorable discharge in return for assisting the military police in the arrest and conviction of a noncommissioned officer who was bringing in drugs.  He states he was ignorant of the change of his discharge agreement and was no longer using heroin at the time.  The record should show he was accompanied by another Soldier who desired the drugs.  He also states he was treated for hepatitis while serving in Germany and he was promised a general discharge in exchange for his help.

3.  The applicant provides no additional evidence.

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 records, though somewhat incomplete, show he enlisted in the Regular Army on 21 June 1977 for a period of 3 years.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training as a supply specialist at Fort Lee, Virginia, before being transferred to Germany on 19 October 1977.  He was advanced to pay grade E-4 on 15 November 1978.

3.  On 5 March 1979, the applicant was seen at the Fliegerhorst Clinic, Hanau, Germany, and was diagnosed with a past history of heroin abuse as confirmed by needle tracks on both arms.  On 10 May 1979, he was diagnosed as having viral hepatitis due to improper use of drugs.  He was admitted to the 97th General Hospital for treatment on 14 May 1979.  On 24 July 1979, he tested positive for heroin in a urinalysis.

4.  On 31 July 1979 at 0900 hours, the applicant's commander ordered the applicant restricted to post because he had been determined to be a drug abuse and rehabilitative failure by the Fliegerhorst Command Drug and Alcohol Abuse Center.

5.  On 31 July 1979 at 2245 hours, the applicant and another Soldier were witnesses buying heroin in an establishment (pool hall) in Hanau, Germany, by members of the drug suppression team.  They were arrested when they exited and charged with possession of a controlled substance.

6.  On 2 August 1979, charges were preferred against the applicant for disobeying a lawful order from a superior commissioned officer and wrongfully possessing of a habit-forming narcotic drug (heroin).  An investigation conducted under Article 32, Uniform Code of Military Justice, recommended trial by general court-martial.

7.  On 20 August 1979 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement or explanation in his own behalf.

8.  His entire chain of command recommended approval of his request with a discharge under other than honorable conditions.

9.  On 27 September 1979, the appropriate authority (a brigadier general) approved his request for discharge and directed the issuance of an under other than honorable conditions character of service.

10.  Accordingly, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 9 October 1979 under the provisions of chapter 10, Army Regulation 635-200.  He completed 2 years, 3 months, and 19 days of active service.

11.  A review of the available records failed to show any evidence indicating the applicant entered into a plea agreement with law enforcement officials or his chain of command.

12.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

13.  Army Regulation 635-200 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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of his misconduct, the lack of mitigating circumstances at the time, and his otherwise undistinguished record of service.  His service simply did not rise to the level of honorable or general under honorable conditions.

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 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)                                         AR20110024162



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ABCMR Record of Proceedings (cont)                                         AR20110024162



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