IN THE CASE OF: BOARD DATE: 11 February 2016 DOCKET NUMBER: AR20150004963 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 an upgrade of his under other than honorable conditions characterization of service. 2. The applicant states he went on vacation to London and his unlocked wall locker was searched. During the search two pieces of hash were found and he was immediately labeled a drug dealer. He is currently a special police officer, has turned his life around, and is no longer using drugs. 3. The applicant provides no additional evidence in support of his request. 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 September 1977 and held military occupational specialty 13E (Fire Direction Specialist). 3. He received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 2 September 1982 for being absent without leave from 25 August 1982 through 1 September 1982. 4. Summary Court Martial Order Number 9, dated 20 July 1983 shows he was found guilty of committing assault. 5. His sentence consisted of reduction to the rank/grade of private first class/E-3, forfeiture of $3,000, 45 days of extra duty, and 30 days of restriction. The sentence was approved and was ordered executed. The sentence was adjudged on 20 July 1983. 6. A DA Form 2496 (Disposition Form), subject: Request for Discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), dated 2 April 1984, stated the applicant was facing charges for which a court-martial could adjudge a punitive discharge. The charges included distribution of hash, possession of hash, and possession of drug abuse paraphernalia. 7. On 16 March 1984, the applicant consulted with counsel. He was advised of the basis for his contemplated trial by court-martial, after which he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 8. In his request for discharge, he indicated he: * was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * was advised of the implications that were attached to his request * acknowledged that, by requesting discharge, he understood the elements of the offense charged, was admitting guilt to the charge (or of a lesser included offense), and that the offenses could impose a bad conduct discharge or a dishonorable discharge * understood, if his discharge request was approved, he could be given an under other than honorable conditions discharge, and this type of discharge could cause him to be deprived of many or all Army benefits * understood he could be deprived of his rights and benefits as a Veteran under both Federal and State laws and could encounter substantial prejudice in civilian life as a result of having an under other than honorable conditions discharge * elected not to submit a statement in his own behalf 9. On 2 April 1984, the separation authority official approved his request and directed that he receive a UOTHC discharge and reduction to the lowest enlisted grade. 10. On 26 April 1984, he was discharged accordingly. His DD Form 214 for this period of service shows he completed 6 years, 6 months, and 7 days of net active service for this period, with 22 days of lost time. He was discharged in the rank/grade of private/E-1. 11. On 28 August 1985, the Army Discharge Review Board denied his request for an upgrade of his UOTHC discharge. 12. Army Regulation 635-200 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 submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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 was charged with distribution of hash, possession of hash, and possession of drug abuse paraphernalia. 2. He was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial. 3. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and the rights of the applicant were fully protected throughout the separation process. Notwithstanding his claim of good post-service conduct, there is no evidence of factors sufficiently mitigating to support upgrading the characterization of service he received. 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) AR20150004963 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004963 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1