IN THE CASE OF: 

		BOARD DATE:	    16 April 2014

		DOCKET NUMBER:  AR20130014256 


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 discharge under other than honorable conditions.

2.  The applicant states he served honorably from 6 November 1985 to 7 September 1992 and reenlisted for assignment to Fort Lewis, Washington.  In late 1993, he made a poor judgment in his family life that destroyed his marriage and led him to being way out of line by using drugs and not caring about anything or anyone.  To this day he cannot believe how stupid he was.  He wants to be able to put all of that behind him and believes an upgrade of his discharge is a good way to start.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2 (Personnel Qualification Record – Part I), and DA Form 2-1 (Personnel Qualification Record – Part II).

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 6 November 1985 for a period of 3 years and training as a single channel radio operator under the airborne enlistment option.  He completed basic training at Fort Jackson, South Carolina; advanced individual training at Fort Gordon, Georgia; and airborne training at Fort Benning, Georgia; before being transferred to Alaska.

3.  He served through a series of continuous reenlistments, was promoted to the rank of sergeant on 1 August 1989, served in Korea, and reenlisted for assignment to Fort Lewis, Washington.  He was also on the promotion standing list for promotion to pay grade E-6.

4.  The applicant was apprehended by civil authorities in Tacoma on 26 March 1994 and charged with possession of cocaine.  He tested positive for cocaine on 15 April and 18 April 1994 while in the Alcohol Drug Abuse Prevention Control Program.

5.  The applicant was serving in the rank of specialist four on 7 June 1994 when charges were preferred against him for being absent without leave (AWOL) from 25 May to 1 June 1994; wrongful use of cocaine on or about 2 May 1994; being drunk and disorderly in uniform in Tacoma, Washington; and breaking restriction.

6.  On 20 June 1994 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

7.  On 21 June 1994, the appropriate authority approved his request for discharge and directed his discharge under other than honorable conditions.

8.  On 1 July 1994, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 8 years, 8 months, and 19 days of active service and accrued 6 days of lost time due to AWOL.  He was reduced to pay grade  E-1 at discharge.

9.  There is no evidence in the available records showing he applied to 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.

	a.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the serious and repeated nature of his offenses, his rank at the time, and the lack of mitigating circumstances at the time.

2.  The applicant's voluntary request for separation 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 regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances and he was properly reduced to pay grade E-1.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

4.  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 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)                                         AR20130014256



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ABCMR Record of Proceedings (cont)                                         AR20130014256



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