IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120011795 


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 (UOTHC) discharge.

2.  The applicant states:

* he was about 18 or 19 years of age when he was sent to Germany as a Soldier
* he became friends with a sergeant who was showing him all the wrong things, which included the black market and purchasing hashish 
* he was arrested at the barracks for wrongful possession of drugs 
* he now needs medical assistance and he is one step away from being homeless

3.  The applicant provides no additional evidence in support of his request.

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 born on 10 August 1960 and enlisted in the Regular Army, at 17 years and 10 months of age, on 18 June 1979.  He completed the training requirements and he was awarded military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained during his military service was private/E-2. 

3.  On 14 March 1981, his command preferred court-martial charges against him for one specification of wrongful possession and transfer of a controlled substance (marijuana).

4.  On 8 June 1981, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he 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 request for discharge, the applicant acknowledged he was voluntarily making the request of his own free will, he had not been subjected to any coercion, and he had been advised of the implications that were attached to his request.  He also acknowledged he understood by requesting a discharge he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He further acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.

6.  On 9 June 1981, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of a UOTHC discharge. 

7.  On 11 June 1981, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge for the under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, and directed the issuance of a UOTHC discharge.  The applicant was accordingly discharged on 26 June 1981 in pay grade E-1.
8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with a UOTHC discharge.  This form shows he completed 2 years and 9 days of active service.

9.  On 14 June 1983, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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 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, at the time a UOTHC discharge was normally considered appropriate.

	a.  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.

	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.  The applicant's records show he was charged with wrongful possession and transfer of a controlled substance which is an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10, Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of a trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The applicant was nearly 18 years of age when he enlisted in the Regular Army and over 20 years of age when he committed his drug offense.  However, there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  He was mature enough to complete training.

3.  Based on the charges, 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 either an honorable or a general discharge.

4.  The ABCMR does not correct records solely for the purpose of making applicants eligible for benefits from other agencies.  

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)                                         AR20120011795



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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