IN THE CASE OF:	  

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140001634 


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 other than honorable conditions discharge.

2.  The applicant states that he had served almost 3 years of service and was living off post with his wife and child when the incident occurred.  After getting off his shift he went back to the barracks to play video games with another Soldier.  This Soldier sold drugs to someone who came to the room, but he had no knowledge of the transaction until he was charged a few days later.  He was told to sign paperwork or be court-martialed.  He asks that the Board consider that he was under treatment at the time, he never sold drugs while on active duty, and he never saw the evidence against him.

3.  The applicant provides no additional evidence.

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.  On 10 May 1989, he enlisted in the Regular Army and served in military occupational specialty 94B (Food Service Specialist).

3.  The specific facts and circumstances of his discharge proceedings are not available for review.

4.  On 6 April 1992, he was discharged 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 with an under other than honorable conditions discharge.  He completed 2 years, 10 months, and 27 days of creditable active service during the period under review and served in Southwest Asia from 
6 January to 13 May 1991.

5.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

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

7.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge.

2.  His record is void of the complete facts and circumstances that led to his discharge and he did not provide evidence to support his contentions that he was innocent of the offense that led to his discharge or that he was essentially given no choice but to accept a discharge under other than honorable conditions or be court-martialed.  He further contends that he was under treatment; however, it is not possible to determine if such treatment was relevant to his discharge processing because the applicant did not specify what type of treatment or a record of that treatment.

3.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, with an under other than honorable conditions discharge.  Discharges under the provisions of chapter 10 are voluntary requests.  Therefore, he was required to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  In addition, his request would have included an admission of guilt.

4.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.

5.  In view of the above, his request should be denied.



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)                                         AR20140001634





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ABCMR Record of Proceedings (cont)                                         AR20140001634



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