IN THE CASE OF:	  

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20120002726 


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 (UOTHC) to a general discharge under honorable conditions.

2.  He states he was young and immature when he enlisted and made the mistake of following others.  While stationed at Fort Hood, TX, he resided in base housing which consisted of three-man rooms and he did not get to choose his roommates.  His problems began while living with a roommate named Private (PVT) ED.  PVT ED would have a large amount of people entering the room on the weekends.  Having a chemical dependency problem himself, he would occasionally smoke marijuana with PVT ED.

3.  The applicant states he went to Austin, TX, with PVT ED and witnessed him purchasing a large amount of lysergic acid diethylamide (LSD) and he concluded that PVT ED was selling LSD on base.  Eventually PVT ED was caught and the applicant was charged with aiding and abetting because he kept his mouth shut and would not snitch.

4.  He states he ended up hiring a civilian attorney who was able to get the charges dropped and replaced by a discharge in lieu of trial by court-martial under the provisions of chapter 10.  At the time he was just glad to be released from the military.  He states he was granted a waiver to serve in the infantry because of his flat feet and a juvenile shoplifting charge.  He now feels this quagmire would never have happened if he had not been allowed to serve in the infantry.

5.  He contends that both he and society would benefit if his discharge is upgraded because he would be able to obtain more meaningful employment.  His conduct and efficiency ratings were always above average.  He believes he was in the wrong place at the wrong time and had no real control over what happened to him.

6.  He 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.  He was born in February 1967 and enlisted in the Regular Army on 15 October 1986 at the age of 19.  After completion of training, he served in military occupational specialty 11C (Indirect Fire Infantryman).

3.  He was assigned to Fort Hood, TX, on 19 February 1987.  The highest rank he attained while serving on active duty was private first class.

4.  The applicant's record contains a DD Form 458 (Charge Sheet) which shows he was charged with conspiring with PVT ED and PVT CM between 20 and 27 February 1988 by driving to Austin, TX, to purchase LSD with the intent to distribute.  He was also charged with possession of 51 "hits" of LSD with intent to distribute.

5.  An investigation under Article 32(b) of the Uniform Code of Military Justice (UCMJ) was conducted to investigate the charges.  The investigating officer (IO) found the alleged charges and specifications as shown on the DD Form 458 were supported by the evidence found during the Article 32 investigation.

6.  His record contains a form, dated 19 May 1988, subject:  Advice on Disposition of Court-Martial Charges, which shows his entire chain of command recommended trial by a general court-martial and the IO recommended trial by a special court-martial and a bad conduct discharge.

7.  On 16 June 1988, the applicant voluntarily 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.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge UOTHC, and the rights available to him.  In his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser-included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

8.  He also stated he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further indicated he understood he could encounter substantial prejudice in civilian life because of a UOTHC discharge.  After being advised of his rights, the applicant elected not to submit a statement on his behalf.

9.  The applicant's chain of command recommended approval of his request for discharge for the good of the service and his discharge UOTHC.  The appropriate approval authority approved the request and directed the applicant's discharge UOTHC.

10.  Accordingly, on 1 July 1988, he was discharged UOTHC under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 8 months, and 17 days of net active service.

11.  His record does not document any acts of valor or special recognition and does not show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 states 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.

	b.  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 that his discharge UOTHC should be upgraded because he was immature at the time and he was involved with the wrong people which ultimately led to his misconduct.

2.  The evidence shows he was 21 years of age at the time of the incident.  There is no evidence he was any less mature than other Soldiers of the same age who served honorably and completed their terms of service.

3.  He was charged with possession of 51 "hits" of LSD with intent to distribute which is a violation of the UCMJ for which a bad conduct or dishonorable discharge could have been imposed.  His actions were investigated under the provisions of Article 32 of the UCMJ and the IO found the charges and specifications as outlined on the DD Form 458 to be supported by the evidence.  Rather than face trial by court-martial, he opted to submit a request for discharge for the good of the service and his request was approved.

4.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

5.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally UOTHC and the evidence shows the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  His record does not contain any evidence of acts of valor or special recognition which would warrant an upgrade of his discharge.  As such, 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 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)                                         AR20120002726



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ABCMR Record of Proceedings (cont)                                         AR20120002726



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