RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060016350 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions. 

2.  The applicant states, in effect, that prior to his enlistment in the Army he did not use hard drugs, such as "cocaine or heroin"; however, he had used "alcohol, marijuana, and pills."  He also states, in effect, that his dream was to be an officer in the Army and to make the military a career.  The applicant further states, in effect, that his hard drug use started after his entry on active duty and his medical records show that he was discharged after his heroin detoxification.  He also states that he was told by his superiors that he would go to prison if he did not accept a less than honorable discharge.  He further states, in effect, that he was told that he would not be eligible for all of his veteran benefits as a result of his discharge but, he would receive about one-third of the benefits.  The applicant concludes by stating, in effect, that his medical examination upon entry into the military shows that he was not using drugs prior to entering active duty.
 
3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 14 August 1979, the date of his discharge from the Army.  The application submitted in this case is dated 6 November 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.  On 13 January 1975, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years.  The applicant was ordered to active duty for training on
8 May 1975 and, upon successful completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  The applicant was released from active duty (REFRAD) on 8 September 1975 to return to his USAR unit.
4  On 10 March 1978, the applicant's commander provided the applicant notice of his unsatisfactory participation in the USAR as a result of his unexcused absences.  At that time, the applicant's commander informed him that he must request the applicant be involuntarily ordered to active duty for 24 months, less any prior creditable active duty service time.

5.  On 8 September 1978, the applicant was ordered to active duty for a period of 19 months and 15 days and was assigned to the 233rd Transportation Company, 70th Ordnance Battalion, Fort Bliss, Texas.

6.  The applicant's military service records are absent documentation relating to the applicant's medical examination upon his enlistment in the USAR or upon his entrance on active duty.

7.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 19 March 1979.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 0730 hours, 13 March 1979, absenting himself from his place of duty and remaining absent until on or about 1230 hours, 13 March 1979.  The punishment imposed was reduction to the grade of private (E-2), forfeiture of $80.00, 14 days extra duty, and 7 days restriction.

8.  The applicant's military service records contain a DA Form 3647 (Clinical Record Cover Sheet) that shows the applicant was admitted to William Beaumont Army Medical Center (WBAMC), El Paso, Texas, on 19 March 1979, for heroin detoxification and discharged to return to duty on 22 March 1979.

9.  The applicant's military service records contain a DA Form 4465 (ADAPCP Military Client Intake and Follow-Up Record), dated 23 March 1979.  This document shows, in pertinent part, that the applicant was referred to non-resident rehabilitation based on a physician's diagnoses of the applicant's dependence on heroin and improper use of cannabis sativa.

10.  The applicant's military service records contain a copy of a DA Form 2627, dated 30 April 1979.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about
0900 hours, 24 April 1979, using disrespectful language toward a superior noncommissioned officer who was then in the execution of his duty.  The punishment imposed was reduction to the grade of private (E-1), 14 days extra duty, 14 days restriction (suspended for 30 days), and $75.00 fine (suspended for 30 days).
11.  The applicant's military service records contain a DA Form 4465 (ADAPCP Military Client Intake and Follow-Up Record), dated 25 May 1979.  In pertinent part, the Remarks section of the form contains the entry, "Early termination as rehab failure."

12.  The applicant's military service records contain a DD Form 649 (Individual Sick Slip), dated 19 June 1979.  In pertinent part, the Remarks section of the form contains the entry, "SM is turning himself in for drug abuse."

13.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows, on 10 July 1979, the commander of the 233rd Transportation Company, 70th Ordnance Battalion, Fort Bliss, Texas, preferred charges against the applicant for being absent without leave (AWOL) from on or about 16 May 1979 to on or about 8 June 1979, and for, on or about 9 February 1979, stealing a stereo receiver (a value of about $290.00), which was the property of another Soldier.

14.  On 18 July 1979, the applicant requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

15.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law (emphasis added); and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

16.  The applicant's request for separation contains a letter written by the applicant to the separation authority, dated 18 July 1979. in which the applicant states, in pertinent part, "Being ordered to active duty from reserve status, I was not, admittedly, prepared for such a change.  The abrupt change in environment caused complications in my personal life, which in turn led to my use of drugs.  I was lucky enough to benefit from rehabilitative efforts at the Halfway House which has enabled me to kick this monkey from my back."

17.  The applicant's records contain a Standard Form (SF) 93 (Report of Medical History), dated 25 July 1979, which was completed by the applicant at the time of his medical examination prior to his separation from active duty.  Item 19 (Have you ever been a patient in any type of hospitals?) of the SF 93 contains a check mark under the "Yes" column and in the space to the right of this item the applicant entered, "WBMC Drug Treatment."  Item 25 (Physician's summary and elaboration of pertinent data) shows, in pertinent part, the following handwritten notes: "Has past history of headaches due to drug problem, seen at WBAMC"; Leg cramps due to drug problem"; Has history of drug problem"; and "Nervousness, trouble sleeping and depression due to drug problem."

18.  The applicant's military service records contain a SF 88 (Report of Medical Examination), dated 25 July 1979, prepared upon medical examination of the applicant prior to his separation from active duty.  Item 73 (Notes) contains, in pertinent part, the typed statement, "There are no disqualifying mental or physical defects sufficient to warrant disposition through medical channels."  Item 77 (Examinee) shows that the physician entered an "X" in the block next to the statement "Is Qualified For" and in his own hand wrote, "Chp 10 Discharge" just above the typed entry "Separation UP AR 635-200, Ch 10."  The document also shows that it was signed by both the physician assistant and the medical doctor.

19.  On 26 July 1979, the first lieutenant serving as acting commander of the 233rd Transportation Company, 70th Ordnance Battalion, Fort Bliss, Texas, recommended denial of the applicant's request for discharge, indicating the offenses are very serious and warrant a maximum punishment under the Uniform Code of Military Justice, and recommended justice be imposed by a Special Court-Martial.

20.  On 27 July 1979, the lieutenant colonel in command of the 70th Ordnance Battalion, Fort Bliss, Texas, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The battalion commander also recommended that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

21.  On 30 July 1979, the lieutenant colonel serving as acting commander of the 11th Air Defense Artillery Group, Fort Bliss, Texas, indicated that due to the nature of the charges in the applicant's case, he recommended approval of the applicant's separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The group commander also recommended that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

22.  On 2 August 1979, the brigadier general serving as Acting Commander,
U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service and directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

23.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows that he was discharged on 14 August 1979, in accordance with the provisions of chapter 10 of Army Regulation 635-200, for the good of the Service, under other than honorable conditions.  The DD Form 214 also shows that, at the time of his discharge, he completed 10 months and 14 days active service and had 23 days lost under Title 10, United States Code 972, during the period under review.

24.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

25.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

26.  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.

27.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded because his hard drug use started after his entry on active duty; he was medically treated and discharged after his heroin detoxification; he was told by his superiors that he would go to prison if he did not accept a less than honorable discharge; and he was incorrectly told that he would be eligible for about one-third of his veterans benefits.

2.  The applicant's records are absent documentation relating to the applicant's medical examination upon his enlistment in the USAR or upon his entrance on active duty.  The applicant claims that his medical examination upon entry into the military shows that he was not using drugs prior to entering active duty. However, in his application to this Board the applicant also states that, "I had used drugs such as "alcohol", "marijuana", [and] "pills."  Thus, the applicant provides insufficient evidence to support his claim concerning the onset of his drug use/abuse.

3.  The evidence of record shows that the applicant was admitted to WBAMC on 19 March 1979 for heroin detoxification and was discharged to return to duty (emphasis added) on 22 March 1979.  The evidence of record also shows that on 23 March 1979 the applicant began a non-resident rehabilitation program of treatment, but was terminated from the program early as a rehabilitative failure on 25 May 1979.

4.  The evidence of record shows that the applicant's request for discharge was voluntary, that he made the request of his own free will, and was not subjected to any coercion whatsoever by any person.  Therefore, the evidence of record fails to substantiate the applicant's claim that he was informed he would go to prison if he did not accept a discharge under conditions other than honorable.

5.  The evidence of record shows the applicant was advised, and acknowledged that he understood, that he may be ineligible for many or all benefits (emphasis added) administered by the Veterans Administration and that he may be deprived of his rights and benefits as a veteran under both Federal and State law because of an undesirable discharge.  Therefore, the evidence of record fails to substantiate the applicant's claim that he was told that "[he] would get at lease (sic) 35% benefit" with a less than honorable discharge.

6.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

7.  The applicant’s record of service shows completion of only 10 months and
14 days of his 19-month and 15-day enlistment and that he had 23 days of lost time.  The evidence of record also shows that, during the period of service under review, non-judicial punishment was imposed against the applicant for absenting himself from his place of duty, using disrespectful language toward a superior noncommissioned officer, and larceny of private property.  Thus, the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 August 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
13 August 1982.  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

___LDS__  ___JRS _  ____CAD  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.




 ___Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20060016350
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/05
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790908
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.