IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130009853 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  He states that at the time he was unaware of what could have been done to defend himself against the charges.  He also maintains he was not provided due process in that he was discharged for drugs without receiving any type of drug treatment program.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two supporting statements.

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 7 June 1982. 

3.  On 30 May 1984, he was formally reprimanded for being identified as an illegal drug abuser as a result of a positive urinalysis test for THC on 23 May 1984.

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 15 June 1984 for failing to go to his appointed place of duty on 3 June 1984.

5.  The charge sheet pertaining to the applicant’s discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial is not contained in his available military records.  However, his records contain a chapter 10 packet that shows on 12 October 1984, he consulted with counsel and he 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.

6.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected to provide a statement on his behalf.

7.  In his statement he said he committed a grave mistake and has tried to rectify his actions.  He explained that he voluntarily participated in a civilian and military police activity which resulted in numerous drug related arrests and confiscation of large amounts of illegal contraband.  He added that his actions resulted in his life being threatened by the arrested individuals.  He offered he was remorseful for his actions and respectfully requested his chapter 10 discharge be approved.

8.  On 22 October 1984, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

9.  On 2 November 1984, the applicant signed the Medical Examination Statement of Option for Separation/Retirement declining a separation medical examination.
10.  On 2 November 1984, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 4 months, and 26 days of net active service during this period.

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

12.  The applicant provided:

   a.  A supporting statement from a retired sergeant major who speaks highly of the applicant's dependability, cooperativeness, and initiative.  He stated that a discharge upgrade would increase the applicant's opportunities to flourish in supporting his family, friends, and his community.   
   
   b.  A statement from his chiropractor who requests prompt processing of the applicant's case to determine his VA eligibility.
   
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was 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 applicant argues, in effect, that his discharge should be upgraded because he had a drug problem and he was not afforded a drug treatment program.  Although his record contains a letter of reprimand for being identified as positive on a urinalysis, there is no evidence and he did not provide any to show he was denied counseling or treatment for his drug problems or that his dependency was the cause of his indiscipline and subsequent separation.  

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Although a copy of the charge sheet was not in his available record, the evidence shows he admitted he was guilty of the offense for which he was charged.  The record also shows he voluntarily requested separation under the provisions of Army Regulation
635-200, chapter 10, to avoid trial by court-martial.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20130009853





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ABCMR Record of Proceedings (cont)                                         AR20130009853



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