IN THE CASE OF:  	  

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140013500 


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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states:

	a.  He was wrongfully discharged from the Army.  He never stole anything, never failed a urinalysis test, and he never did illegal drugs while he was in the Army.  The Army was and still is his life.  He took the fall because he had no family to go back home to at the time.  He is providing a full list of medications he was prescribed while he was stationed at the Warrior Transition Unit (WTU), Fort Drum, NY.

	b.  He called Fort Knox, KY, and was told that if a urinalysis test is passed it is retained for 2 years after the discharge date and if it is failed it is retained for 5 years.  He was never told that he failed a urinalysis test and he knows that he passed all of his urinalysis screenings when he was in the Army and when he was assigned to the WTU.

3.  The applicant provides 

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a three-page listing of prescription medications, printed on 7 May 2014
* a laboratory test form, undated


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 24 March 2004 and he held military occupational specialty 11B (Infantryman).  In 2008, he was assigned to the WTU, Fort Drum.

3.  On 6 January 2009, court-martial charges were preferred against him for:

* four specifications each of failing to go to his appointed place of duty at the prescribed time
* one specification of being disrespectful in language toward a noncommissioned officer
* one specification of disobeying a lawful order
* one specification, with intent to deceive, of making a false official statement
* one specification, on diverse occasions, of wrongfully using Percocet, a Schedule II controlled substance
* one specification, on diverse occasions, of wrongfully distributing more than 4 Percocet pills
* four specifications each of stealing Percocet pills, the property of other Soldiers
* one specification of stealing 160 Celebrex pills, the property of another Soldier
* one specification of being incapacitated for the proper performance of his duties as a result of overindulgence in intoxicating liquor or drugs

4.  On 14 January 2009, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge (emphasis added).  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He declined to submit a statement on his own behalf.

6.  His immediate and senior commanders subsequently recommended approval of his request for discharge with an under other than honorable conditions characterization of service.

7.  On 4 February 2009, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  On 10 February 2009, he was discharged accordingly.  

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  

9.  On 1 November 2010, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and equitable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  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 VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, 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. 
   
12.  Army Regulation 635-200, 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 evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial and by doing so he admitted he was guilty of one or more of the charges preferred against him or a lesser included offense.  Notwithstanding his contention that he was wrongfully discharged, the evidence of record confirms his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140013500



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ABCMR Record of Proceedings (cont)                                         AR20140013500



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