IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130006239 


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.  The applicant states, in effect, his discharge was caused by another Soldier who turned his name in instead of his own.  He further states he served his country proudly and now needs medical benefits.

3.  The applicant provides no additional documents.

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 8 March 1984.  He completed training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 4 April 1986, charges were preferred against the applicant for:

* possession of drug abuse paraphernalia on 21 March 1986
* wrongful distribution of hashish on 31 December 1985
* wrongful distribution of hashish on 7 March 1986
* wrongful possession of hashish on 21 March 1986

4.  On 13 May 1986, contrary to his pleas, the applicant was found guilty of:

* possession of drug abuse paraphernalia on 21 March 1986
* wrongful distribution of hashish on 7 March 1986
* wrongful possession of hashish on 21 March 1986

5.  He was sentenced to a forfeiture of pay for three months, confinement for three months, reduction to private (PV1)/E-1, and a bad conduct discharge.

6.  On 10 June 1986, after consulting with counsel, the applicant voluntarily submitted a 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.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if such a discharge was issued to him.

7.  On 12 June 1986, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He further set aside the findings and the sentence of the court and dismissed the charges and its specifications.

8.  On 18 June 1986, the applicant was discharged accordingly.  He completed
2 years, 3 months, and 11 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the 


service – in lieu of trial by court-martial with an under other than honorable conditions discharge.

9.  There is no evidence of record and the applicant did not provide any evidence that indicates the applicant’s indiscipline was the direct result of another Soldier’s actions.

10.  On 1 April 1990, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board determined he was properly and equitably discharged and denied his request for an upgrade of his discharge.

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.  If disciplinary proceedings are not held in abeyance, the general court-martial convening authority may approve the member's request for discharge for the good of the Service after the member has been tried.  In this event, the officer who convened the court, in his or her action on the case, should not approve any punitive discharge adjudged.  The officer should approve only so much of any adjudged sentence to confinement at hard labor or hard labor without confinement as has been served at the time of the action.

	c.  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.

	d.  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 discharge should be upgraded was carefully considered and determined to have insufficient merit.

2.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service – in lieu of trial by court-martial. Discharges under this chapter are due to a voluntary request for discharge 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.

3.  Based on the applicant’s record of indiscipline that includes possession of drug abuse paraphernalia, and wrongfully distribution and possession of marijuana in the hashish form, clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.

4.  He had been convicted by a court-martial of the offenses for which he was later granted an administrative discharge.  His contentions should have been raised at trial, and could have been conclusively adjudicated during the appellate process had he not elected to request an administrative discharge instead

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20130006239



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ABCMR Record of Proceedings (cont)                                         AR20130006239



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