IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021312 


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 honorable.

2.  The applicant states he was falsely accused of selling drugs while serving in the U.S. Army.  He was stationed in Germany in 1979 and 1980 and accused of possessing, transferring, and selling heroin and marijuana.

	a.  He states there was a racial component to the charges against him.  He observed and spoke out to his platoon sergeant about white Soldiers being authorized leave to go home shortly after being assigned to Germany while black Soldiers (including the applicant) were not.  The platoon sergeant took him to the commander's office after the formation and he was told that he would be sent to the stockade if he continued to cause trouble.  That's where he ended up.

	b.  He states he was never caught or apprehended with any drugs or marked money (currency with recorded serial numbers) and there were no witnesses to any of the "so called drug buys."  He elected to request an administrative discharge instead of going to a court-martial because he was afraid he would be sent to prison.

	c.  He recently ordered his military service records and there is no proof in the Article 32 investigating officer's (IO's) report of investigation (ROI) that he sold drugs while serving in the Army.  The Soldiers who told U.S. Army Criminal Investigation Command (CID) investigators that they bought drugs from him were already in trouble and were falsely accusing him so their charges would be reduced or dismissed.

3.  The applicant provides a self-authored statement; his enlistment documents; extracts from the IO's ROI; and separation documents, including his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 6 February 1979 for a period of 3 years.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service):  Germany from 2 August 1979 through 5 November 1980; and

	b.  item 35 (Record of Assignments):  Combat Support Company, 2d Battalion, 36th Infantry, from 5 August 1979 through 4 November 1980.

4.  A CID ROI, dated 30 May 1980, shows an investigation disclosed that the applicant wrongfully possessed and transferred 0.04 grams of heroin to a confidential informant on 21 April 1980 and he received an $80.00 payment on 21 April 1980.  It also shows the applicant sold 0.06 grams of heroin to the same confidential informant on 24 April 1980.

5.  On 20 June 1980, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) as follows:



* Article 134 (12 specifications) including, in part:

* for possessing, transferring, and selling heroin (two occasions)
* for possessing, transferring, and selling marijuana in the hashish form (two occasions)

* Article 81 (2 specifications) for conspiring with a Soldier to commit the offense of possessing and selling marijuana in the hashish form (two occasions)

6.  On 26 June 1980, an IO was appointed to investigate the charges against the applicant in conformity with the Manual for Courts-Martial, Article 32, UCMJ.

	a.  The IO notified the applicant he would be conducting the investigation on 10 July 1980.

	b.  The applicant and his counsel were present for the investigation.  The IO read the preliminary advice to the applicant and the applicant stated he understood the preliminary advice.

	c.  Witnesses were called by the IO.  The applicant stated that no witnesses for the defense or in mitigation would be called at the investigation.

	d.  The IO reported that sufficiency of proof for the charges and specifications depend heavily upon the testimony of two witnesses.

	e.  On 16 July 1980, the IO recommended trial by general court-martial.

7.  The battalion and brigade commanders also recommended trial by general court-martial.

8.  On 8 August 1980, the Staff Judge Advocate (SJA), 3rd Armored Division, prepared pre-trial advice for the commanding general on the disposition of court-martial charges.

	a.  The SJA advised that specification 2 of charge II should be dismissed and the remaining specification should be renumbered as the charge (i.e., charge II).

	b.  He also advised that the 12 specifications of Charge I are multiplicious for sentencing purposes.  Therefore, the maximum permissible sentence in this case is a dishonorable discharge, confinement at hard labor for 35 years, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.

	c.  The SJA recommended that the commanding general convene a general court-martial for the amended charges.

9.  On 14 August 1980, the commanding general approved the recommendation.

10.  On 15 September 1980, the applicant consulted with legal 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.  The applicant's request for discharge states he was not subjected to coercion with respect to his request.

	a.  By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of lesser-included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, 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 if he were issued an Under Other Than Honorable Conditions Discharge Certificate.

	c.  He was also advised that he could submit any statements he desired in his own behalf; however, he elected not to do so.

	d.  The applicant and his counsel placed their signatures on the document.

11.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The battalion commander noted that the applicant had been in pre-trial confinement for 85 days and witnesses had been reassigned.  As a result, a conviction would be difficult to obtain.  He was willing to support discharge of the applicant contingent upon issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 20 October 1980, the separation authority approved the applicant's request for discharge and directed his reduction to private/E-1 and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  The applicant's DD Form 214 shows he was discharged on 6 November 1980 under the provisions of Army Regulation 635-200, chapter 10, by reason of an administrative discharge – conduct triable by court-martial.  It further shows he completed 1 year, 9 months, and 1 day of creditable active service.

14.  On 7 March 1988, the Army Discharge Review Board determined that the applicant was properly and equitably discharged.  Accordingly, his request for a change in the character of his service was denied.

15.  Department of the Army Pamphlet 27-17 (Guide for Preparing Article 32(b) Investigating Officer) defines the Article 32 investigation as a judicial proceeding that plays a necessary role in military due process of law.  The investigation is subject to subsequent review at the trial, if there is a trial, and on appeal.

16.  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.  Chapter 3, 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.  Chapter 3, 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 that his discharge under other than honorable conditions should be upgraded because he was falsely accused of possessing, transferring, and selling heroin and marijuana while serving in Germany.

2.  The evidence of record shows that a CID ROI found the applicant wrongfully possessed, transferred, and sold heroin to a confidential informant on two occasions in April 1980.  As a result, court-martial charges were preferred against the applicant.

3.  An IO was appointed to investigate the charges.

	a.  The applicant and his counsel were present for the investigation.  However, the applicant elected not to call witnesses in his defense or in mitigation.

	b.  The IO found sufficient proof for the charges and specifications and recommended trial by general court-martial.

4.  The SJA, 3rd Armored Division, reviewed the charges and recommended a general court-martial for the amended charges.

5.  The evidence of record shows that witnesses involved in the applicant's case had been reassigned from Germany and, as a result, a conviction by general-court martial would have been difficult to obtain.  However, the applicant did not demand trial by court-martial.  Instead, 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, chapter 10.  He chose not to submit any statements in his own behalf.  More importantly, in his request for discharge he acknowledged that he was guilty of the charges against him or of lesser-included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

6.  The applicant's contentions were carefully considered.  However, in every instance where the applicant had the opportunity to challenge the evidence and charges against him and/or demand trial by court-martial to present evidence that he was not guilty of the charges and specifications, the applicant failed to do so.

7.  Other than the applicant's contentions, there is no evidence of record to show he was falsely accused of possessing, transferring, and selling heroin and marijuana in the hashish form.  In fact, the applicant's contentions are refuted by the evidence of record.

8.  The evidence of record shows the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.

	a.  His request for discharge shows he acknowledged he understood that he might be discharged under other than honorable conditions.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	b.  The offenses that led to his discharge action far outweigh his overall record of service during the period under review.

	c.  Considering all of the facts of the case, his character of service was appropriate and equitable.

9.  The applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20120021312



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ABCMR Record of Proceedings (cont)                                         AR20120021312



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