IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120000908 


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 upgrade of his discharge under other than honorable conditions.

2.  The applicant states: 

* He was suffering from drug addiction and he was not afforded any treatment 
* He was not afforded sound legal advice 

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 30 October 1978 for a period of 3 years.  He completed his training and was awarded military occupational specialty 15D (lance missile crewman). 
 
3.  On 24 August 1979, charges were preferred against the applicant for aggravated assault upon a Soldier (hitting him on the head and hand with a hammer), possessing drug paraphernalia containing heroin and residue of marijuana in the hashish form, communicating a threat to kill, and violating a lawful general regulation (having in his possession drug paraphernalia).  Trial by general court-martial was recommended. 

4.  On 7 September 1979, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf. 

5.  The unit commander and intermediate commander recommended his request for discharge be denied and he be tried by a general court-martial. 

6.  On 21 September 1979, the separation authority denied his request for discharge for the good of the service. 

7.  On 4 October 1979, the applicant's defense counsel requested the separation authority reconsider his previous action on the applicant's request for discharge for the good of the service. 

8.  On 5 October 1979, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions. 



9.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 17 October 1979 under the provisions of Army Regulation 635-200, chapter 10.  He completed 11 months and 18 days of creditable active service. 

10.  There is no evidence that shows he was diagnosed with drug abuse or dependency prior to his discharge. 

11.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 

12.  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.  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. 

13.  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. 

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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was suffering from drug addiction and he was not afforded any treatment.  However, there is no evidence of record that shows he was diagnosed with drug abuse or dependency prior to his discharge.  In any case, he could have self-referred for treatment. 



2.  Although the applicant contends he did not receive sound legal advice, evidence shows he consulted with counsel on 7 September 1979.  Counsel advised he request discharge for the good of the service in lieu of trial by court-martial (chapter 10, Army regulation 635-200).  He did so, but the approving authority rejected the request.  Counsel successfully argued for a chapter 10 discharge and convinced the approving authority.  Given the serious nature of the charges against him, a court-martial could have resulted in a Federal felony conviction and a bad conduct or dishonorable discharge.  Counsel properly advocated for the applicant in this case.

3.  His brief record of service included serious offenses for which general court-martial charges were preferred against him.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge. 

4.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so. 

5.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case. 

6.  In view of the foregoing, there is no basis for granting 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)                                         AR20120000908





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ABCMR Record of Proceedings (cont)                                         AR20120000908



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