IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20130000838 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he enlisted in the Army when he was 17 years old and he was stationed in Germany.  He held military occupational specialty (MOS)19K (M1 Abrams Armor Crewman); however, he was assigned as the driver for the battalion commander/executive officer.

	a.  Shortly after wrecking his car, he was pulled into the U.S. Army Criminal Investigation Command (CID) station and he was told he was in trouble for a drug charge.  Someone had reportedly seen him dealing drugs at a nearby pub.  He did frequent the pub and sometimes drank too much; however, he never engaged in any drug-related activities.

	b.  He spent several hours with CID and they convinced him that since he had never been in trouble before he should "just sign a confession" and accept nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  He feels he was coerced into signing a confession and does not remember anyone ever asking him if he would like to speak with an attorney.

	c.  After he was released by CID he discovered his chain of command wanted to discharge him for the good of the service.  His unit turned its back on him for 
something he did not do and pressured him into accepting a chapter 10 discharge.  He feels the Army took advantage of him.

3.  The applicant provides a 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 4 September 1984 and he held MOS 19K.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His record is void of the complete facts and circumstances surrounding his discharge; however, it does contain a DA Form 2496 (Disposition Form), subject: Request for Discharge for the Good of the Service, dated 5 January 1987, wherein he voluntarily requested discharge for the good of the service in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged he understood he could request discharge for the good of the service because he had been charged with violating Article 112a of the UCMJ by wrongfully distributing 1.99 grams of marijuana in the hashish form, and that this charge authorized the imposition of a bad conduct or dishonorable discharge.  He stated he was making his request of his own free will and he had not been subjected to any coercion whatsoever by any person.  In this request for discharge he acknowledged 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 a dishonorable discharge.  He further acknowledged he understood that 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, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  The applicant signed this form acknowledging he received a copy of the request for discharge.

4.  This form further shows that Captain (CPT) WAK, Defense Counsel, advised the applicant of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the rights and procedures available to him.  CPT WAK also signed this form.

5.  On 9 January 1987, the separation authority, a major general, approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.

6.  On 4 February 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  He completed 2 years, 5 months, and 1 day of creditable active service.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 states 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 states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service – in lieu of trial by court-martial.  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.

2.  The applicant contends his discharge should be upgraded because CID coerced him into signing a confession for a crime he did not commit and then his unit pressured him into accepting a chapter 10 discharge.  However, his record shows he was charged with distributing 1.99 of marijuana in hashish form, an offense punishable under the UCMJ with a punitive discharge.  He could have accepted trial by court-martial if he believed he was innocent.

3.  In view 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 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)                                         AR20130000838



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ABCMR Record of Proceedings (cont)                                         AR20130000838



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