RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 August 2005 DOCKET NUMBER: AR20050001069 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. James Vick Chairperson Mr. Ronald Weaver Member Mr. Robert Rogers Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to honorable. 2. The applicant states, in effect, he was accused of a crime that he did not commit. He contends he only gave his roommate a ride, he never took money from anyone and he never gave any drugs to anyone. He also contends he was released after it was determined that he was charged in error; however, he had already spent 75 days on restriction. He points out that two days prior to being detained for a crime that he did not commit, he was awarded the Army Commendation Medal for outstanding performance of duty. He goes on to state that when he was found innocent of the crimes he was being investigated for he was offered the option to go to trial or take a chapter 10 general discharge and just get out. At this point he was emotionally drained and he just wanted out. He states he wants to clear his name and correct the discharge. He indicates he has been a model citizen and he feels he served his country honorably. 3. The applicant provides four character reference letters; an award certificate for the Army Commendation Medal; a recommendation for a teaching position; and a letter of acceptance. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 7 January 1988. The application submitted in this case is dated 18 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. Having prior inactive service, the applicant enlisted on 9 January 1985 for a period of 3 years. He was awarded military occupational specialty 13F (fire support specialist). 4. On 21 September 1987, the applicant made a sworn statement and admitted he had conspired with another Soldier to possess and distribute cocaine on 6 August 1987. He also admitted that he had used cocaine and marijuana. 5. On 29 September 1987, charges were preferred against the applicant for distributing cocaine (1 specification) and using cocaine (three specifications). Trial by general court-martial was recommended. 6. On 8 December 1987, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law. He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. He elected not to submit a statement on his own behalf. 7. On 16 December 1987, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions. 8. Accordingly, the applicant was discharged under other than honorable conditions on 7 January 1988 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial. He had served 3 years and 5 months of total active service. 9. The applicant provided four character reference letters from friends. They attest the applicant is a model citizen, a dedicated father and husband, a true patriot, and a proud American. 10. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 12. Army Regulation 635-200, paragraph 3-7, 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. 13. Army Regulation 635-200, paragraph 3-7, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention relates to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process. However, the applicant voluntarily requested discharge in lieu of trial by court-martial. 2. The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded. 3. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. In addition, he had previously made a sworn statement admitting he had conspired with another Soldier to possess and distribute cocaine and that he had used cocaine and marijuana. 4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 5. The applicant’s record of service included serious drug offenses that led to referral of general court-martial charges. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge. 6. Records show the applicant should have discovered the alleged injustice now under consideration on 7 January 1988; therefore, the time for the applicant to file a request for correction of any injustice expired on 6 January 1991. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING JV_____ RW______ RR_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ___James Vick_________ CHAIRPERSON INDEX CASE ID AR20050001069 SUFFIX RECON DATE BOARDED 20050818 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19880107 DISCHARGE AUTHORITY AR 635-200 Chapter 10 DISCHARGE REASON For the good of the service BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.