IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140010815 


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 be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was discharged for a positive urine test and was told that his discharge would be upgraded in 6 months.  He also states that his record of service should be considered because he was awarded two Good Conduct Medals, completed the primary leadership course and attained the rank of sergeant.  He has been sober/clean for over 15 years and now serves as a rehabilitation counselor.  He believes he now deserves a discharge upgrade. 

3.  The applicant provides a one-page letter explaining his application and a copy of his 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 enlisted in the Regular Army on 28 July 1980 for a period of 3 years and training as a unit supply specialist.  He completed his one-station unit training at Fort Jackson, South Carolina and was transferred to Germany.

3.  He remained on active duty through a series of continuous reenlistments and was promoted to the rank of sergeant on 3 March 1985.

4.  On 28 March 1989, while stationed at White Sands Missile Range, New Mexico, his commander notified him that he was initiating action to bar him from reenlistment based on five incidents of failure to pay just debts and the wrongful use of marijuana.  The applicant declined the opportunity to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 18 April 1989.

5.  On 21 June 1989, charges were preferred against the applicant for two specifications of the wrongful use of marijuana, driving while drunk, being absent without authority from 27 March to 28 March 1989, failure to go to his place of duty, and breaking restriction.

6.  On 27 June 1989, after consulting with defense counsel, the applicant submitted a request for 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 his request 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 (emphasis added).  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 also elected to submit a statement in his behalf wherein he asserted that while he had made some mistakes, he should not have his whole life destroyed by having a court-martial on his record and receiving a chapter 10 discharge would afford him an opportunity to put his life back together.

7.  On 3 June 1989, the appropriate authority (a major general) approved his request and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, and furnished a discharge under other than honorable conditions.

8.  On 13 July 1989, he was discharged accordingly.  He completed 8 years, 11 months, and 16 days of total active service. 

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 3 October 1994 contending that his record of service warranted an upgrade of his discharge to at least a general discharge.  The ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge on 31 December 1996.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be given an individual who was discharged for the good of the service.

	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 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.

2.  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.

3.  The applicant's contentions and supporting documents have been noted and not only are they not supported by the evidence of record, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the serious nature of the charges against him and the fact that he violated the trust placed in him as a noncommissioned officer.  His service simply did not rise to the level of under honorable conditions.

4.  In view of the foregoing, there is no 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 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)                                         AR20140010815



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ABCMR Record of Proceedings (cont)                                         AR20140010815



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