IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20120005276 


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 general under honorable conditions.

2.  He states that during the 22 years since his discharge, he has attended college, raised two children, been gainfully employed, and been actively involved in his church and volunteer organizations.  He maintains he has built an excellent reputation in the community.

3.  He provides Congressional correspondence, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and six supporting statements.

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 11 April 1989.

3.  The charge sheet is not available, but his discharge packet shows he was charged with wrongfully distributing marijuana.

4.  On 14 February 1990, he consulted with counsel and he voluntarily 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.

5.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

6.  On 28 February 1990, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

7.  On 12 March 1990, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 11 months and 2 days of net active service during this period.

8.  On an unknown date, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  Although a copy of the charge sheet pertaining to the applicant's offense is not contained in his available military records, the ADRB Case Report acknowledged that he was charged with wrongfully distributing marijuana.  On 31 December 1996, the ADRB denied his request for a discharge upgrade citing that he was properly and equitably discharged.

9.  The six supporting statements submitted by the applicant speak highly of the applicant's honesty and dependability.  One author stated he has known the applicant for more than 25 years.  He said the applicant has always acted in a way that displays a high moral and ethical character.  Another author stated the 

applicant demonstrated a strong faith and firm commitment to Jesus Christ.  The Chief Executive Officer of the Ohio Referral Association Agency offered that the applicant was one of the most valuable assets during his time with the organization.

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

	a.  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.

	b.  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.  Although the charge sheet is not available, in the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows he admitted he was guilty of wrongfully distributing marijuana.  The record also shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

2.  Although the applicant has provided numerous supporting statements attesting to his dependability and his outstanding qualities, good post-service conduct alone is not a basis for upgrading a discharge.

3.  Based on his record of indiscipline, 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 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 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)                                         AR20120005276



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ABCMR Record of Proceedings (cont)                                         AR20120005276



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