IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120003022 


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 discharge be upgraded to general discharge.

2.  The applicant states:

	a.  When he was in the Army, he was stationed in Panama.  He provided a urine sample during a 100 percent mandatory urinalysis test and was found to have cocaine in his system.  He believes he was presented the substance by a local national when he was extremely intoxicated.  As a result of the findings, he was advised he was going to be court-martialed.  He opted to accept an under other than honorable conditions discharge.  He was only 19 years of age at the time and accepts responsibility for his actions.  However, he believes one time use of the substance should not have resulted in this type of discharge.

	b.  The time he used the substance was the one time he was offered it from a local national.  He gave some to a fellow Soldier.  As a result, he was charged with distribution and using a controlled substance.  He does not believe he was given proper instructions as to what he would receive as punishment for admitting to using and providing the substance to a willing participant.  He did not sell the substance.  He did not have any prior convictions and he has not been involved in any similar instances.  He believes a person learns from experiences and should be allowed the opportunity to use this knowledge to help him or herself before any long-lasting decisions are made.


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 show he enlisted in the Regular Army on 23 July 1993 and he held military occupational specialty 11B (Infantryman).  He was awarded the National Defense Service Medal, Army Service Ribbon, and the Parachutist Badge.

3.  He was assigned to 1st Battalion, 508th Infantry Regiment, Panama, on 21 January 1994.

4.  On 10 April 1994, the applicant's commander was notified that the applicant's 21 March 1994 urine sample had tested positive for cocaine.

5.  His record contains a DA Form 2823 (Sworn Statement), dated 14 April 1994, wherein he admitted to a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigator that, on 18 March 1994, he purchased cocaine in a bar from a Panamanian local.  He further stated that he used some of the cocaine at the bar and gave some of the cocaine to a fellow Soldier, who also used the drug.

6.  On 19 April 1994, court-martial charges were preferred against him for one specification each of wrongfully distributing an unknown quantity of cocaine and wrongfully using cocaine.

7.  On 20 April 1994, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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.

8.  In his request for discharge, he acknowledged he understood if the request was approved he might be discharged under other than honorable conditions.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He further stated he did not desire further rehabilitation and he had no desire to perform further military service.

9.  On 22 April 1994, his immediate commander recommended approval of his request for a discharge with an under other than honorable conditions discharge.  

10.  On 25 April 1994, his senior commander recommended approval of his request for a discharge and stated the applicant's use of cocaine warranted the issuance of an under other than honorable conditions discharge.

11.  On 29 April 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  On 25 May 1994, he was discharged accordingly.  

12.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 10 months and 3 days of active service.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of a serious offense 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he used cocaine and provided cocaine to a fellow Solder.  Based on this record of misconduct his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20120003022



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ABCMR Record of Proceedings (cont)                                         AR20120003022



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