RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012519 


	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.




	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, in effect, that his undesirable discharge be corrected to a medical discharge. 

2.  The applicant essentially states that at the time of his discharge, he did not know that drug addiction was probable cause for a medical discharge.

3.  The applicant provides a three-page self-authored letter and an extract of a social security earnings statement in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 19 October 1973, the date of his discharge from the Regular Army.  The application submitted in this case is dated 28 August 2006.

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 limitations 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.  The applicant’s military records show that he enlisted in the Regular Army on 14 July 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 36C (Lineman).  

4.  Between 21 January 1972 and 4 April 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on six occasions.  His offenses included failing to obey a lawful order; failing to go at the time prescribed to his appointed place of duty on three occasions; violating a lawful general regulation; and going, without authority, from his appointed place of duty.  Collectively, his punishment consisted of one reduction in rank, forfeiture of $289.00, 47 days of extra duty, 47 days restriction, and an oral reprimand.



5.  On 6 March 1972, the applicant was convicted by a special court-martial of going absent without leave (AWOL) from 7 February 1972 to 28 February 1972.  His punishment consisted of confinement at hard labor for 2 months, which was suspended, and forfeiture of $158.00 per month for 2 months.

6.  On 2 July 1973, the applicant went AWOL again.  On 1 August 1973, he was dropped from the rolls of the Army and listed as a deserter.  On 4 October 1973, he was returned to military control.

7.  Although the complete separation packet surrounding his discharge was not contained in the available records, his military records do contain a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty). This document shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial) on 19 October 1973.  This document also shows that he was reduced to the rank of private/pay grade E-1 effective 17 October 1973.

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.  The applicant essentially stated that at the time of his discharge, he did not know that drug addiction was probable cause for a medical discharge.  However, there is no evidence in the applicant’s military records which shows that he had a drug addiction at the time of his active duty service, or that his discharge was caused by a drug addiction.  There is also no provision of regulation that provided for a medical discharge for drug addiction.

10.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  At the time, an undesirable discharge 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.  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 contends that his undesirable discharge should be corrected to a medical discharge. 

2.  The fact that the applicant essentially stated that he did not know that drug addiction was probable cause for a medical discharge was noted.  However, there has never been a provision in a governing regulation which provided for a medical discharge for drug addiction.  There is also no evidence in his military records which shows that he had a drug addiction during his active duty service, or that his undesirable discharge was caused by a drug addiction.

3.  Although the applicant’s complete separation packet was not in his military records, it is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows that had 115 days of lost time due to AWOL.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this record of indiscipline, and the applicant’s record of NJP under Article 15 of the UCMJ and his conviction by a special court-martial, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Additionally, even if there was evidence that the applicant had a drug addiction at the time of his active duty service, there is no provision of regulation that provided for a medical discharge for drug addiction.  Therefore, he is not entitled to an honorable, general, or medical discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 October 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
18 October 1976.  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

___KW __  __LD ___  __EF ___  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.




_____ Kenneth Wright________
          CHAIRPERSON




INDEX

CASE ID
AR20060012519
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19731019
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.