IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011644 


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 general discharge to a fully honorable discharge.

2.  The applicant states:

* he was discharged for failing a urinalysis – he failed a test by a reasonable margin of error (less than .03 percent)
* the level was still acceptable for Federal service
* he still cannot explain what occurred – he believes he may have ingested something at a party upon his return from Bosnia
* at the time, it was determined the level of substance he had in his system was consistent with possible ingestion
* he has been out of the military for 14 years and he has not been in any kind of trouble since
* he has risen to a position of leadership in his community
* he gave the Army 11 years and 11 months as an enlisted Soldier and officer
* he should not have to live the rest of his life with a discharge other than honorable conditions

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 was appointed as a Reserve commissioned officer and executed an oath of office on 17 December 1993.  He completed the Chemical Officer Basic Course.

3.  He entered active duty on 18 March 1994.  He was assigned initially to Fort Carson, CO, and later to the U.S. Army Logistics Management College, Fort Lee, VA.

4.  On 30 October 1997, he participated in a unit urinalysis and his urine sample tested positive for tetrahydrocannabinol (the active chemical in marijuana).

5.  On 15 December 1997, the Commanding General (CG), Combined Arms Support Command (CASCOM), Fort Lee, VA, notified the applicant that he was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  After having been afforded the opportunity to consult with counsel, the applicant elected trial by general court-martial (GCM).

6.  On 20 January 1998, court-martial charges were preferred against the applicant for the charge and specification of wrongfully using marijuana.

7.  On 6 February 1998, he consulted with legal counsel and was advised of the basis for the contemplated trial by GCM for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a voluntary resignation, and the procedures and rights available to him.  Following consultation with legal counsel, he voluntarily tendered his resignation from the Army for the good of the service in lieu of trial by court-martial in accordance with chapter 3-13 of Army Regulation 600-8-24 (Officer Transfers and Discharges).

8.  In his request for discharge, he indicated that:

* he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he had been afforded an opportunity to present matters in explanation, mitigation, or defense of his case
* if his resignation were accepted, it might be considered under other than honorable conditions
* if his resignation under other than honorable conditions were accepted, he would not be entitled to compensation for unused accrued leave
* if his resignation were accepted, regardless of the type of discharge certificate furnished, he would not be entitled to separation pay
* if his resignation were approved, 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  His immediate and senior commanders reviewed his request and opined that although the charge against him was serious, the needs of the service would be best met if the resignation were accepted in lieu of trial by GCM.  They both recommended an under other than honorable conditions character of service.

10.  On 11 February 1998, the CASCOM CG recommended approval of the applicant's resignation with the issuance of an under other than honorable conditions character of service.

11.  On 26 February 1998, an ad hoc review board convened to consider the applicant's request for voluntary resignation in lieu of trial by GCM.  The ad hoc review board recommended approval of the resignation with the issuance of a general discharge.

12.  On 11 March 1998, the Deputy Assistant Secretary of the Army (Army Review Boards) approved the recommendation of the ad hoc board to accept the applicant's resignation for the good of the service (RFGOS) tendered by him.

13.  On 12 March 1998, the Commander, U.S. Army Personnel Command (currently known as the U.S. Army Human Resources Command (HRC)), Alexandria, VA, notified the CASCOM CG that the applicant's RFGOS under the provisions of chapter 3, Army Regulation 600-8-24, was approved and directed issuance of orders effecting his discharge under honorable conditions with a General Discharge Certificate.

14.  On 8 April 1998, he was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years and 21 days of creditable active military service during the period under review.  Item 26 (Separation Code) of DD Form 214 shows the entry "DFS" and item 28 (Narrative Reason for Separation) shows the entry "IN LIEU OF TRIAL BY COURT-MARTIAL."

15.  On 21 July 2000, the Army Discharge Review Board reviewed his discharge and found it proper and equitable.  Accordingly, it denied his petition for an upgrade of his discharge.

16.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  Chapter 3 covers resignations.  Paragraph 3-13 states an officer may submit an RFGOS in lieu of GCM under the following circumstances (cannot submit unqualified resignation):  (1) court-martial charges have been preferred against the officer with a view toward trial by GCM or (2) the officer is under a suspended sentence of dismissal.  The tender of a RFGOS does not preclude or suspend procedures.  A convening authority will not, however, take action on the findings and sentence in such cases until the Secretary of the Army or designee has acted on the RFGOS.  An RFGOS will be expeditiously forwarded by the commander exercising GCM jurisdiction direct to the Commander, HRC.  Court-martial proceedings may be continued until action by the convening authority on the findings and sentence of the court.  A convening authority will not take action in a case until the Secretary of the Army or delegate acts on the RFGOS.  An officer separated under this paragraph normally receives characterization of service of under other than honorable conditions.  

17.  Paragraph 1-22 of Army Regulation 600-8-24 provides that an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of military service and his post-service achievements were considered.  However, by violating the Army's policy regarding illegal drug use, the applicant compromised the trust and confidence placed in him as a commissioned officer.  His actions diminished the quality of his service below that meriting a fully honorable discharge.

2.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Certain discharges under the provisions of chapter 3 of Army Regulation 600-8-24 are voluntary requests for discharge/RFGOS in lieu of trial by court-martial.

3.  He voluntarily, willingly, and in writing, requested resignation from the Army for the good of the service in lieu of trial by GCM.  He could have continued with court-martial proceedings where his innocence could have been established.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  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 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 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)                                         AR20120011644



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011644



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1