IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120010893 


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 to an honorable discharge.

2.  The applicant states he was young at the time [of his discharge] and he had gotten a woman pregnant.  Not knowing what he should do, he went absent without leave (AWOL) for 3 days.  When he returned, he failed a drug test.  With his state of mind after returning from Iraq, he made a foolish decision and indulged in foolish behavior.  He feels his discharge should be upgraded because he did serve in Desert Shield/Storm and he was young and immature.  He has been an upstanding citizen for the last 20 years.  He has no felonies to speak of and has conducted his life in a pure American way.

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 9 March 1990 when he was almost 21 years of age and he held military occupational specialty (MOS) 16S (Pedestal Mounted Stinger Crewmember).  This MOS was subsequently changed to 14S (Avenger Crewmember).

3.  He served in Southwest Asia from 5 October 1990 to 1 April 1991 while assigned to the 4th Battalion, 5th Air Defense Artillery, Fort Hood, TX.

4.  He was reported AWOL from his assigned unit on 21 November 1991 and he returned to his assigned unit on 22 November 1991.

5.  On 26 November 1991, he underwent a urinalysis test which subsequently tested positive for cocaine.

6.  On 9 January 1992, court-martial charges were preferred against him for one specification each of:

* wrongfully using cocaine between 26 October and 26 November 1991
* being AWOL from his assigned unit from 21 to 22 November 1991
* failing to go to his reported place of duty at the prescribed time on 15 December 1991

7.  On 13 January 1992, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense/offenses 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 declined to submit a statement on his own behalf.
9.  On 23 January 1992, 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 14 February 1992, he was discharged accordingly.  

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged 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 characterization of service.  He completed 1 year, 11 months and 6 days of net active service.

11.  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.

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 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.

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 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 serious 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  
2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Records show he was over 22 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Although his post-service record may be noteworthy and he is a Veteran of Desert Shield/Storm, it doesn't mitigate the fact that he used cocaine during his military service.

5.  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)                                         AR20120010893





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ABCMR Record of Proceedings (cont)                                         AR20120010893



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