IN THE CASE OF:  	  

		BOARD DATE:  30 October 2014	  

		DOCKET NUMBER:  AR20140005572 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to general, under honorable conditions.

2.  The applicant states he was accused of wrongdoing but was innocent.  The enclosed evidence shows he was innocent.  He had asked for a court-martial but was told to fight the case in the United States. 

3.  The applicant provides copies of:

* Letter, Wiesbaden Drug Testing Lab, dated 22 September 1986
* Letter addressed: To Whom it May Concern, dated 25 September 1986
* Letter from the State of New York, Division of Veteran's Affairs, dated       14 November 2003
* Letter, Department of Veterans Affairs (VA), dated 12 April 2013 (first page only)
* Letter from the applicant, addressed: To whom it May Concern, dated       16 May 2013

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 7 February 1979, the applicant enlisted in the Regular Army.  He completed his initial training as a medical specialist.

3.  On 23 January 1981, the applicant was advanced to specialist four, pay 
grade E-4.

4.  On 21 November 1986, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of:

	a.  Article 92, for violating a lawful general regulation by wrongfully possessing drug abuse paraphernalia, to wit: one smoking device;

	b.  Article 112a, for wrongful possession of two grams of marijuana and two grams of marijuana in the hashish form;

	c.  Article 112a, for wrongful possession of 1,549.86 grams of marijuana and 100.94 grams of marijuana in the hashish form with the intent to distribute the said controlled substance;

	d.  Article 112a, for wrongful distribution of some amount of marijuana in the hashish form; and

	e.  Article 112a, for wrongful use of some amount of marijuana.

5.  On 3 February 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  He did not submit a statement in his own behalf.

7.  On 2 March 1987, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other than Honorable Conditions).  On 31 March 1987, the applicant was discharged accordingly.  He had completed a total of 8 years, 1 month, and 25 days of creditable active military service.

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

9.  Army Regulation 635-200 (Enlisted Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC 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 (emphasis added), 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.  

10.  Under the UCMJ, the maximum punishment allowed for violation of:

   a.   Article 92, for violating a lawful general regulation, is a punitive discharge and 2 years confinement; and
   
   b.  Article112a, for wrongful distribution of some amount of marijuana, is a punitive discharge and 15 years confinement.

11.  The applicant has provided two letters of support dated at about the time of his discharge.

	a.  On 22 September 1986, a major from the Wiesbaden Drug Testing Lab stated that during the period 3 to 6 June 1986 the lab erred in the applicant's urinalysis testing because of faulty equipment or contaminated specimens.

	b.  On 25 September 1986, an individual who was a passenger on the same bus as the applicant wrote a letter about him and the bus driver, making statements to the German authorities about the applicant not having any luggage and implying that he therefore could not have done what he was accused of doing.

12.  The applicant also provided a copy of a letter from the State of New York, Division of Veteran's Affairs, dated 14 November 2003, written to the U.S. Army Reserve Personnel Center, asking for assistance in obtaining an upgrade of the applicant's discharge on the basis that he did not do anything wrong and was falsely accused of having drugs.

13.  The letter from the VA, as provided by the applicant, dated 12 April 2013, states they had his claim for VA benefits but needed to determine his eligibility because he did not have an honorable characterization of service.  He was informed of what the VA needed in order to make this determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge UOTHC be upgraded to general, under honorable conditions because he was innocent of the charges.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The evidence provided by the applicant with this case may have had a significant impact on the outcome of any court-martial that may have been convened.  However, no court-martial was ever convened because he requested an administrative discharge in lieu of such court-martial.  His admission of guilt in requesting discharge holds primacy to whatever decision a court-martial may have made.

4.  Furthermore, the applicant has not provided any documentary evidence showing that he was coerced or was otherwise misinformed about the consequences of his administrative discharge.

5.  In view of the above, the applicant's 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)                                         AR20140005572





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ABCMR Record of Proceedings (cont)                                         AR20140005572



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