IN THE CASE OF:	   

		BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130004390 


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 (UOTHC) discharge to a general discharge.

2.  The applicant states he served the Army with all his heart and soul.  He was airborne, jump master, and ranger qualified.  He was young at the time and made a very serious mistake that ended his military career.  He has been a model citizen working his way up in the hospitality industry.  He states had it not been for his mistake he would have been a career Soldier.  He is a role model for the younger generation.  He also promotes the military for young adults.

3.  The applicant provides no additional documentary 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.  On 23 August 1977, he enlisted in the Regular Army at the age of 18.  He was awarded military occupational specialties 75C (Personnel Management Specialist) and 11B (Infantryman).  The highest rank/grade he held was sergeant/E-5.

3.  On 26 May 1981, he reenlisted for 6 years.

4.  His complete discharge packet is not available for review.  However, his records show that on 10 November 1981, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  The charges listed were possession of 174 tablets of LSD, 43 tablets of methaqualone, and 56.92 grams of marijuana for use, transfer, and sale.

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge(s) against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge 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.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf.  

6.  His chain of command recommended he be given a UOTHC discharge.  On 20 November 1981, the separation authority approved his request to be discharged for the good of the service.

7.  On 30 November 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in accordance with the separation authority's decision.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows his service was characterized as UOTHC.  It also shows he completed 4 years, 3 months, and 8 days of total creditable active military service.

8.  His record shows he was awarded the Army Good Conduct Medal, Parachutist Badge, and French Commando Badge.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
  
10.  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.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  However, the available evidence does not support his request that his UOTHC discharge be upgraded.
2.  He was charged with serious drug-related offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He admitted guilt to the charges preferred against him and 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.

3.  At the time, a UOTHC discharge was normally considered appropriate for Soldiers separated for the good of the service.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130004390



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ABCMR Record of Proceedings (cont)                                         AR20130004390



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