IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160000990 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160000990 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160000990 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 discharge. 2. He states, in effect, that his discharge was the result of the Criminal Investigation Division (CID) and another Soldier entrapping him into purchasing cocaine. He contends that this Soldier was already in trouble with CID, so the Soldier cooperated by having the applicant ride with him to make the purchase. This Soldier was able to go on with his career. However, the applicant’s career ended and he lost his family. Having his discharge upgraded will allow him to receive medical benefits, housing assistance, schooling, and possibly employment. 3. The applicant provides: * Missouri Birth Certificate * Honorable Discharge Certificate * Missouri Driver’s License Receipt * Mississippi State Health Department Identification Card * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Stewpot Community Services Letter, dated 15 December 2015 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 8 September 1982, he enlisted in the Regular Army. 3. The specific facts and circumstances of his discharge proceedings are not available for review; however, the applicant’s record contains a CID Report of Investigation (Final), dated 14 June 1989. This report shows that CID conducted an investigation of the applicant for the wrongful possession and distribution of cocaine and conspiracy to wrongfully possess and distribute cocaine. Paragraph 7.2 of this report states: About 1330, 18 May 89, at the Ft Devens CID office, SA Mxxxxxx placed the [applicant] under apprehension as a subject in this case. [The applicant] made a written statement admitting purchasing and possessing the cocaine from a civilian in Charlie’s Bar on 31 Mar 89, and then distributing it to the USACIDC source. [The applicant] stated that the only reason he purchased the cocaine was because Gxxxx asked him to and he agreed to do it. 4. The CID investigator opined that there was sufficient probable cause to title the other Soldier and the applicant for conspiracy to wrongfully possess and distribute cocaine and the wrongful possession and distribution of cocaine. 5. The applicant was discharged on 26 August 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and a characterization of service as under other than honorable conditions. 6. The applicant provides documents that show he was homeless in 2015 and sought assistance from the Stewpot Community Services Office. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that the applicant must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. He must have 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. b. 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. 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. 2. His record is void of the complete facts and circumstances that led to his discharge; however, the CID report shows there was sufficient probable cause to title the applicant for the wrongful purchase and distribution of cocaine. Further, the applicant admitted to performing the illegal act at the request of another Soldier. In addition, the evidence does not support the applicant’s contention that he was entrapped. To the contrary, the CID report shows that there was sufficient evidence to charge the other Soldier as well as the applicant. 3. His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, with an under other than honorable conditions discharge. Discharges under the provisions of chapter 10 are voluntary requests. Therefore, he was required to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. In addition, his request would have included an admission of guilt. 4. In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000990 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000990 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2