IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017908 


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 correction of his military records to show his under other than honorable conditions (UOTHC) discharge upgraded to honorable, or to general, under honorable conditions.
   
2.  The applicant states he was discharged due to a drug offense.  He was a specialist, pay grade E-4 at the time.  He now contends the Uniform Code of Military Justice (UCMJ) provided for alternate methods of discipline for his offense that could have been imposed so he would not have lost his military career.

3.  The applicant provides no additional documentation.

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 19 April 1988, the applicant enlisted in the Regular Army.  He completed his initial training as a "Man Portable Air Defense System"(MANPADS) crewmember.

3.  On 12 August 1988, the applicant departed Fort Bliss, Texas for duty in the Federal Republic of Germany.

4.   On 1 August 1990, the applicant, then a specialist, was charged under the UCMJ for violation of:

   a.  Article 92 for the wrongful possession of drug abuse paraphernalia, to wit, a hashish smoking device; and
   
   b.  Article 112a for the wrongful possession of 13.5 grams of marijuana, in the hashish form, with the intent to distribute.

5.  On or about 27 August 1990, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  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 law.

7.  On 4 September 1990, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC discharge.  On 
17 September 1990, the applicant was discharged accordingly.  He had completed 2 years, 4 months, and 29 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:

	a.  Chapter 10 of that regulation provides 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 trial 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his UOTHC discharge upgraded because there were alternate forms of discipline that could have been offered in lieu of his losing his military career.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contention that there were less severe punishments available to the commander is noted.  Also noted is the fact that the commander was not obligated to accept the applicant’s request for an administrative separation.  The applicant could have been tried before a special court-martial which could have resulted in a much harsher sentence than just losing his military career.  Had such happened, he quite possibly could have received a felony conviction for his serious offense.

4.  Based on the seriousness of his offense, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Further, there is no evidence of an error or injustice in what the Army did.  The applicant has not provided any convincing evidence or argument that sufficiently mitigates his crime or the characterization of service he received.  Therefore, he is not entitled to any upgrade of his discharge.

5.  In view of the foregoing, the applicant's request to upgrade his administrative discharge 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)                                         AR20110020309



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017908



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1