IN THE CASE OF:	  

		BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20120022114 


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.

2.  The applicant states, in effect, that his discharge is in error because he is innocent of the charges against him.  He contends that the record will show that there is no evidence of him committing a crime and that he was convicted based on the statements of a known drug user who accused him of selling him drugs.  These false accusations put him and three other men behind bars.  He currently works with the United Veterans of Suffolk County helping veterans to get their lives back on track.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), four letters of reference, and a Certificate of Recognition and Appreciation from the Meals on Wheels organization.

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 was inducted into the Army of the United States on 16 July 1970.  He completed initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC) E-3.

3.  The applicant's record contains two DA Forms 2800 (Criminal Investigation Command (CID) Report of Investigation) rendered during a CID investigation into allegations that the applicant and others wrongfully sold and were in possession of a habit forming drug (heroin).

4.  On 25 September 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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. 

5.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

6.  Based on the seriousness of the allegations his immediate commander recommended that the applicant's request of discharge be denied and that he be given a trial by court-martial.  He stated that in his opinion the accused had potential for rehabilitation within the Army.

7.  His intermediate commander concurred and stated that "Discharge in lieu of court-martial would not be in the best interest of the service and contrary to the U.S. Army policy of rehabilitation prior to returning a serviceman to civilian life."

8.  On 2 October 1971, the separation authority approved the applicant's discharge request and directed that he be reduced in grade to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 and furnished an Undesirable Discharge Certificate.

9.  His DD Form 214 shows that on 28 October 1971 he was discharged accordingly.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 3 months, and 13 days of creditable active service.

10.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge on two separate occasions.  The ADRB informed the applicant on 4 September 1975 and 10 November 1986 that after careful consideration of his military records and all other available evidence, they had determined he was properly and equitably discharged.  Accordingly, the Secretary of the Army had directed that he be advised that his request for a change in the character and/or reason of his discharge had been denied.

11.  The applicant provided letters of reference which show that his post service achievements and good works included working with veterans, active involvement in his church and in his community.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time.

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 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 contention that his record should be corrected by upgrading his discharge was carefully considered and determined to lack merit.

2.  His record is void of any evidence and he did not provide any evidence which shows his discharge processing was in error.  He contends that he was wrongfully discharged based on the false testimony of a known drug dealer; however, the evidence shows that he was charged the possession and sale of heroin and that he voluntarily requested discharge in lieu of court martial.  The evidence further shows that his chain of command recommended court-martial rather than discharge in order to give the applicant an opportunity for rehabilitation and to continue his military service but the applicant elected to be discharged rather than pursue his claim of innocence in a military court.

3.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20120022114





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ABCMR Record of Proceedings (cont)                                         AR20120022114



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