IN THE CASE OF:	  

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140004771 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge or general discharge.

2.  The applicant states the verbal agreement given to him was not consistent with the written order by his chain of command, which was possibly a clerical error.

3.  He provides a self-authored statement and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 25 August 1962 and was appointed as a Reserve commissioned officer on 20 May 1984 at the age 22.  He was ordered to active duty on 4 February 1985 in the rank of second lieutenant.  

3.  On 13 June 1989, charges were preferred against him for two specifications of wrongfully using and possessing a certain amount of cocaine during the month of May 1989.  

4.  On 15 June 1989, he voluntarily tendered his resignation for the good of the service under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 5.  He declined to appear before a court-martial or board of officers.  He acknowledged he had not been subjected to coercion with respect to this resignation and has been advised of and fully understood the implications of this action.  

5.  On 14 July 1989, the Deputy Assistant Secretary (Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review) approved his request for resignation for the good of the service with the issuance of a UOTHC discharge.

6.  On 14 August 1989, he was discharged under the provisions of Army Regulation 635-120 with a UOTHC discharge.  His DD Form 214 shows he completed a total of 4 years, 6 months, and 11 days of active military service.

7.  The applicant provided a self-authored statement in which he attested:

	a.  on 14 August 1989, he resigned his commissioned and accepted a discharge UOTHC.  After many years to reconsider the effect it has had on his life, he's requesting to have his discharge upgraded to an honorable discharge or general under honorable conditions discharge.

	b.  he was a young officer who was learning about life and he made mistakes and/or bad choices along the way.  He made one mistake at the cost of his career.  The options given verbally by his chain of command were to resign with a discharge of general under honorable conditions, which seemed to be the logical choice.  However, this was not put in writing.  He has since learned from these mistakes and the option of resignation in lieu of trial by court-martial appeared to be the logical choice if it resulted in a general under honorable conditions discharge.

	c.  he believes that he received an unjust discharge UOTHC because upon discussing the conditions of his separation from service with his commander, the options given were to resign his commission honorably or proceed to trial with legal representation.  He weighed his options and he chose to resign.  However, the type of discharge he received was not the type of discharge that was verbally discussed with him.  

	d.  after serving 4.2 years of honorable service to his country and performing exceptionally in all duty positions assigned, he is asking the board to consider allowing his discharge to be upgraded to honorable.  With the resignation ending his career and the many years of suffering that he has encountered he feels this should be sufficient punishment for the mistake that he made.  Once the chain of command changed the reading of his discharge from general under honorable conditions to UOTHC, he didn't recognize this upon signing the separation agreement and years later realizing what happened, at the time he didn't think anything could be done to correct it.

8.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

9.  Army Regulation 635-120 implements the statutory provisions of Title 10, 
U.S. Code governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100 (Officer Personnel), paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being UOTHC.

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
1-21a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record is void of evidence and he has not provided any evidence to support his contention that he was given a verbal agreement that he would receive a general under honorable conditions discharge.

2.  His voluntary request for separation under the provisions of Army Regulation 635-120, chapter 5 for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

3.  He contends he was a young officer and he made mistakes and/or bad choices.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  His service record is void of evidence to substantiate his claim that he was given the option to resign with a general under honorable conditions discharge.

5.  The evidence of record shows he was charged with two specifications of wrongfully using and possessing a certain amount of cocaine.  He contends he believes he received an unjust discharge UOTHC based on the choice given to him by his chain of command.  However, considering the seriousness of the applicant's offenses, it appears that his service was appropriately characterized.  

6.  After a review of the available evidence, it is determined he has not presented sufficient evidence which warrants upgrade of his UOTHC to an honorable or 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)                                         AR20140004771





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004771



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1