IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130011691 


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 (UOTHC) discharge be upgraded.  

2.  He states:

   a.  He believes the punishment for his actions was extreme and unjust.
   
   b.  His service was exemplary during his assignment in Vietnam and during his 22 years in the Army.
   
   c.  He was awarded the Army Commendation Medal (4th Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal (7th Award), and Vietnam Service Medal with two bronze service stars.
   
   d.  He served with distinction and valor in all assignments.
   
   e.  He feels that one negative incident on his records should not have resulted in the loss of all his benefits.  It was a time in his life when he was experiencing some personal problems with his family and some alcohol abuse problems that clouded his judgment.  If his records could be reviewed, he thinks the Board would see the punishment did not fit the crime.



3.  He provides:

* Self-authored statement
* DA Form 2166-7 (Noncommissioned Officer Evaluation Report) (front page)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Report of Investigation
* Memorandum from a Staff Judge Advocate
* DA Form 2-1 (Personnel Qualification Record)

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 Army on 20 January 1971.  The highest rank/pay grade he attained while on active duty was sergeant first class/E-7.  However, at the time of his discharge he held the rank/pay grade of private/E-1.

3.  His Charge Sheet is not available in his records.  

4.  On 16 March 1992, he consulted with legal counsel and he 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.  In doing so, he admitted guilt to the offense charged (one specification of violation of Article 112a, Uniform Code of Military Justice (Wrongful Use, Possession, Etc., of Controlled Substances)).  He acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge was issued to him.  He did not submit statements in his own behalf.


5.  He provided a memorandum from a Staff Judge Advocate which indicates in paragraph 2:

   a.  The applicant was charged with one specification of a violation of Article 112a for wrongfully possessing with intent to distribute .34 grams of cocaine.
   
   b.  On 9 May 1992, Etowah County drug enforcement officials acted on information obtained from a confidential source that the applicant was selling cocaine at an abandoned carwash on the corner of Springfield and Meagan Avenues.  It was also noted that the applicant was identified, searched, and found in possession of .34 grams of cocaine.  The applicant later made a statement admitting to the offense of possession with the intent to distribute.  
   
   c.  The applicant's chain of command and the Staff Judge Advocate recommended approval with a UOTHC discharge.

6.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with a UOTHC discharge.

7.  On 24 March 1993, he was discharged with a UOTHC discharge after completing 22 years, 2 months, and 4 days of creditable active service.  His DD Form 214 shows he was awarded or authorized the;

* Army Commendation Medal (4th Award)
* Army Achievement Medal (2nd Award)
* Army Good Conduct Medal (7th Award)
* National Defense Service Medal (2nd Award)
* Vietnam Service Medal with two bronze service stars
* Noncommissioned Officer Professional Development Ribbon (3rd Award)
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Cross of Gallantry with Palm Unit Citation 

8.  The applicant provided a self-authored statement in which he posed questions and stated:

	a.  It was out of character for a Soldier who served with distinction in Vietnam, Laos and Cambodia.

	b.  His career up to the point of his arrest was exemplary.  
	c.  If he had not been drinking and going through some family problems, there is no way that he would have been standing in the area trying to attract some female companionship.  

	d.  He was awarded seven Army Good Conduct Medals and a host of other awards.

	e.  His Noncommissioned Officer Evaluation Reports were outstanding.

	f.  He feels he was probably suffering the delayed effects of combat.  Post Traumatic Stress Disorder (PTSD) may sum up his behavior.  

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 UOTHC discharge 
is normally considered appropriate.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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 voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The evidence of record shows he was charged with one specification of a violation of Article 112a for wrongfully possessing with intent to distribute .34 grams of cocaine.

4.  Considering the seriousness of the applicant's offense, his service was appropriately characterized.

5.  The applicant's statements regarding his personal family problems are also acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

6.  Although the applicant contends that his misconduct was due to alcohol abuse problems, there is no evidence which shows he was diagnosed with alcohol abuse or dependency prior to his discharge.  In addition, he oculd have referred himself for treatment.  He also contends he may have suffered from PTSD, his service record is void of evidence which indicates he was diagnosed with PTSD.

7.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now

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)                                         AR20130011691





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ABCMR Record of Proceedings (cont)                                         AR20130011691



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