BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120011059 


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.

2.  He states he enlisted in the U.S. Army on 21 January 1985 and was supposed to be discharged on 21 January 1988.  He adds that during his time in the military, he got hooked on drugs and started going absent without leave (AWOL).  He maintains he was never offered rehabilitation and was offered a court-martial instead.  He states his first sergeant told him to "chapter out" to keep from going to jail and he would receive a general discharge.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), self-authored statement, and seven 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 22 January 1985 for a period of 3 years.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 23 June 1986 for wrongfully using marijuana on 22 May 1986
* 5 January 1987 for going from his appointed place of duty without authority on 6 December 1986
* 23 November 1987 for being AWOL on two separate occasions --
28 to 30 October 1987 and 5 to 20 November 1987 

4.  On 10 December 1987, charges were preferred against him for being AWOL from 25 to 30 November 1987 and 1 to 3 December 1987.

5.  On 16 December 1987, he consulted with counsel and he 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.

6.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive an under other than honorable conditions discharge 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 an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, 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. 

7.  On 18 December 1987, he underwent a separation physical in which he stated that he was in good health.  He was medically cleared for separation.

8.  On 30 December 1987, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

9.  On 14 January 1988, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions characterization of service.  It also shows he completed 2 years and 11 months of net active service during this period with 24 days of lost time.

10.  On 19 September 1990, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 4 June 1992, the ADRB denied his request for a discharge upgrade citing that he was properly and equitably discharged.

11.  The seven supporting statements submitted by the applicant speak highly of the applicant's honesty, loyalty, and dependability.  One author stated he has known the applicant for more than 8 years and has watched him overcome various challenges of marriage, parenting, neighboring, and employment.  He said the applicant's commitment to his family and his community is immeasurable.

12.  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 3-7a 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.

   c.  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 contends, in effect, that his drug dependency influenced his behavior.  However, there is no evidence that indicates the applicant suffered from drug dependency during his military service or that his dependency was the cause of his indiscipline and subsequent separation.  The evidence of record shows at the time of his discharge a physical evaluation was conducted in which he was cleared for separation.  Additionally, on the evaluation he stated he was in "good health."  Therefore, this contention is not supported by the evidence of record.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he admitted he was guilty of being AWOL from
25 to 30 November 1987 and 1 to 3 December 1987.  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.

3.  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.

4.  His record of service included three NJPs and 24 days of lost time.  Based on this 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 as unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120011059





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ABCMR Record of Proceedings (cont)                                         AR20120011059



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