IN THE CASE OF:	   

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130009762 


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 believes the characterization of his discharge was unjust based on his whole record
* He was given a less than honorable discharge based on a testing that was deemed illegal
* On 27 November 1979, the U.S. District Court for the District of Columbia in "Giles v. Secretary of the Army" (Civil Action Number 77-0904) ruled that a former Army service member is entitled to an honorable discharge
* He was discharged based on a urinalysis
* He was not given the opportunity to attend a drug rehabilitation program or given a separation physical/interview
* He was a good Soldier according to his record in the Army and in the Navy
* At the time of his discharge, he was serving in pay grade E-4 filling an E-5 position during Operation Desert Storm
* He never used drugs so he does not know how the urinalysis was positive for cocaine
* He had many accomplishments during his service as noted on his
DD Form 214 (Certificate of Release or Discharge from Active Duty)
* He believes he served his country well and that he did not do anything wrong; he is entitled to all the benefits related to his service
* He is a hard-working family man who raised two kids on his own after his discharge and he deserves respect for giving up his life and time with his family
* He does not believe his discharge was lawfully correct
* He did not take the time in previous years to fight for his rights because he felt that he did not have a leg to stand on but he does now
* He is marrying a good woman who believes in him and who is willing to help him fight for his rights and benefits

3.  The applicant provides his DD Form 214 pertaining to service in the Navy and a DD Form 214 for the period ending 11 December 1991.

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.  After having had prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 13 June 1989.  He served in Southwest Asia (SWA) from 
28 September 1990 to 13 April 1991.  

3.  On 29 October 1991, court-martial charges were preferred against him for wrongfully using some amount of cocaine.

4.  On 1 November 1991, he consulted with legal counsel and voluntarily requested 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 due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) that authorized the imposition of a bad conduct or dishonorable discharge.

5.  He acknowledged in his request that he understood the elements of the offenses charged and that he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He was advised of:

* the nature of his rights under the UCMJ
* the elements of the offense with which he was charged
* any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the possible defenses which appear to be available
* the maximum permissible punishment if found guilty

6.  He also acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.  

7.  On 6 November 1991, the separation authority approved his request for discharge and directed his reduction to private (PV1)/E-1 with an under other than honorable conditions discharge.  On 11 December 1991, he was discharged accordingly.  His DD Form 214 for this period of service shows he served 2 years, 5 months, and 29 days of net active service this period for a total of 5 years, 5 months, and 27 days of creditable active service.  The DD Form 214 he was issued shows he was awarded or authorized the following awards:

* Army Service Ribbon
* National Defense Service Medal
* Sea Service Deployment Ribbon 
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar
* SWA Service Medal with two bronze service stars 
* Army Commendation Medal

8.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 of that regulation provides 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.

10.  Pursuant to the 27 November 1979 order of the U.S. District Court for the District of Columbia in Giles v. Secretary of the Army, a former Army Soldier is entitled to an honorable discharge if a less than honorable discharge was issued to the Soldier on or before 27 November 1979 in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow-up).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade has been carefully considered.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge he admitted he was guilty of the charge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.

4.  His contentions, as well as his overall service to include his service in SWA, were considered; however, his record of indiscipline includes court-martial charges for wrongfully using cocaine, an offense for which he admitted guilt.  Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that his discharge should be upgraded based on the 
27 November 1979 order of the U.S. District Court for the District of Columbia in Giles v. Secretary of the Army.  However, the order applies only to certain discharges granted on or before the date of the court order.  His discharge was granted several years after that order; therefore, he does not qualify for an upgrade on that basis.

6.  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)                                         AR20130009762



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009762



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1