IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20120002241 


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 with respect to OSA Form 172, case number AD87-xxxx6, Part III, service history, line number 7, with charge dates of 85/03/18 and 85/05/13, he is shown as having been charged with the use of cocaine.  The accusations are false.  He was never once found guilty of a positive showing during the multiple drug screen tests that were given to him.   He believes erroneous information may have been entered by his superiors at the time without his knowledge, which would have bolstered the case against him.  Additionally, his appointed counsel at the time did not indicate anything to him regarding drug use.

3.  The applicant provides:

* Army Discharge Review Board (ADRB) decision
* Copies of his service medical, immunization, and dental records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 24 March 1977 and he held military occupational specialties 11B (Infantryman) and 76Y (Unit Supply Specialist).  He served through two reenlistments in a variety of stateside and overseas assignments, including Korea from July 1983 to July 1984, and he attained the rank of staff sergeant (SSG)/E-6.

3.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Army Achievement Medal (1st Oak Leaf Cluster), and Noncommissioned Officer Professional Development Ribbon with numeral 2.

4.  On 22 February 1985, while holding the rank of SSG/E-6, he was reprimanded by his battalion commander for violating a standing order after being cited for speeding in a military vehicle. 

5.  On 4 September 1985, court-martial charges were preferred against the applicant for one specification each of:

* making a false statement with intent to deceive regarding an appointment with an official of the U.S. Army Criminal Investigation Command
* making a false sworn statement under oath that he discovered his credit union membership card was missing and that someone stole money from his account and forged his signature

6.  On 19 September 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;

	b.  he understood 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 discharge or a dishonorable discharge;

	c.  he acknowledged he understood 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 Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law;

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service; and

e. he elected not to submit a statement in his own behalf.

7.  On 20 September 1985, 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, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 27 September 1985, he was discharged accordingly.

8.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service - in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 8 years, 6 months, and 4 days of creditable active service.

9.  On 15 December 1987, the ADRB denied his request for an upgrade of his discharge.  Part III, paragraph 7 indicated he had accepted nonjudicial punishment on 13 May 1985 for use of cocaine.  This Article 15 was not filed in his official military personnel file.

10.  He submitted copies of his service medical, immunization, and dental records. 

11.  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.

12.  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.  It 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.

13.  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's record shows he was charged with the commission of offenses 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.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  With respect to his arguments concerning the reference to an Article 15 for cocaine use being mentioned in his ADRB case it is true no such Article 15 is filed in his records.  It cannot be determined if that was an error in the ADRB case, or if the ADRB had information in 1985 that is no longer available.

3.  However, the applicant was discharged after court-martial charges were preferred against him for making a false statement with intent to deceive and making and subscribing a false statement under oath.  He was advised of his rights and chose the discharge in lieu of a court-martial that could have adjudged a bad conduct discharge.  

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge 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)                                         AR20120002241



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ABCMR Record of Proceedings (cont)                                         AR20120002241



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