IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130004407 


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 discharge.

2.  He states he was led to believe that, after a certain period of time, the characterization of his service would be upgraded to general, under honorable conditions.  He states his discharge was inequitable because it was based on an isolated incident "in handling in the chain of custody."  He served honorably on active duty and in the National Guard and his discharge has haunted him since 1997.  He does not regret his military service.  His mistake was that he smoked pot one time.  He was a sergeant (SGT)/E-5, and he was not given a second chance.  Upgrading his discharge will give him a second chance.

3.  He provides a letter from the Department of Veterans Affairs (VA).

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.  With prior honorable service in the Army National Guard, on 4 October 1988, the applicant enlisted in the Regular Army.  He was honorably discharged for immediate reenlistment on 3 May 1992 and again on 5 September 1994.  The highest rank/grade he achieved was SGT/E-5.

3.  On 14 November 1997, he was issued a General Officer Memorandum of Reprimand (GOMOR) for operating a motor vehicle while intoxicated.  The reprimand was issued as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).  He did not submit a rebuttal and he refused to acknowledge the GOMOR. 

4.  On 14 November 1997, he consulted with counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions 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 - Enlisted Personnel), chapter 10.  

	a.  He stated he understood he could request discharge for the good of the service because of charges having been preferred against him under the UCMJ, at least one of which authorized the imposition of a bad conduct or dishonorable discharge.  The charges were violation of: 

* UCMJ, Article 111 drunken or reckless operation of a vehicle, aircraft, or vessel
* UCMJ, Article 112a wrongful use of a controlled substance marijuana

	b.  He acknowledged:  

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood that as a result of his request he could be discharged under other than honorable conditions
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge
* he understood that there was no automatic upgrading or review of an other than honorable conditions discharge and that he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his discharge

	c.  He indicated he submitted statements in his own behalf.  Any such statements are not included among the available records.

6.  On 17 November 1997, the separation authority approved his request for discharge, directed that he be discharged under other than honorable conditions, directed that he be reduced to private/E-1, and dismissed the charges against him.  On 2 December 1997, he was discharged as directed.  

7.  On 17 December 1997, Headquarters, 1st Infantry Division, issued Special Court-Martial Order Number 43.  The order shows the applicant had been charged with wrongfully using marijuana between 24 January and 24 February 1997 and driving a passenger car while drunk on 3 October 1997.  The order shows the charges were dismissed due to approval of the applicant's request for discharge in lieu of court-martial.

8.  The available records do not include any chain of custody documents.  

9.  On 27 April 2004, the President, ADRB, notified him his case had been closed after unsuccessful attempts to contact him.

10.  He provides a letter from the VA, dated 30 January 2013, informing him he had periods of honorable Army service from 4 June to 19 August 1986 and from 4 October 1988 to 2 December 1997.

11.  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 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.  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 available evidence does not support the applicant's request for an upgrade of his under other than honorable conditions discharge.

2.  The Army does not have, nor has it ever had, a policy of upgrading discharges based solely on the passage of time.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with the wrongful use of marijuana and driving while drunk, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

4.  He states, in effect, he was discharged due to an isolated incident and that there were issues with the chain of custody, presumably related to the urine sample he would have provided for drug testing.  He chose not to present these matters before a court-martial.  The record shows he had the opportunity to raise these issues in any statements he may have submitted to the separation authority in conjunction with his voluntary request for discharge.  Whether or not he raised these issues in conjunction with his request for discharge, it was within the separation authority's discretion to reject both issues in determining the characterization of his service. 

5.  He provides a letter from the VA indicating that agency has recorded his service as honorable for the period ending 2 December 1997.  For the purpose of determining an individual's eligibility for benefits, the VA, based on its own governing statutes and regulations, may determine a veteran's service was honorable.  This action by the VA is not evidence of an error in the character of service recorded in the individual's Army record.  The Army assigns a characterization of service based on the reason for discharge and the quality of the individual's service during the period in question.  

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, and there is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, he is not entitled to 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)                                         AR20130004407



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ABCMR Record of Proceedings (cont)                                         AR20130004407



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