RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070011299 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 undesirable discharge be upgraded to honorable.

2.  The applicant states that he was a very naïve and young man who was originally drafted and was convinced a few days later to enlist for 3 years against his better judgment so he would not go to Vietnam.  He was sent to Germany where on his first night he was introduced into the world of drugs, where he stayed until his departure.  The whole company, with the exception of maybe a handful, was involved in the sale, purchase, or consumption of drugs of all kinds. He is 54 years old and tired of being considered a felon and not being able to advance in any career due to his discharge status.  He has been punished for    34 years for doing something stupid.  He cleaned up his life concerning drugs in the mid-1970s.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was born on 21 September 1952.  He enlisted in the Regular Army on 12 June 1972.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 71B (Clerk Typist).  He arrived in Germany around 15 December 1972.

3.  In April 1973, after testing positive for morphine, the applicant was enrolled in the Alcohol and Drug Abuse Control Program.  A DA Form 2875-2 (Individual Patient Data System Alcohol and Drug Abuse Control Program Intake Record) listed the applicant’s drug use.  It indicated he first used alcohol at age 13; cocaine, barbiturates, Darvon, tranquilizers, and other psychostimulants at age 18; and marijuana and “cough syrup” at age 17.  It indicated he first used other opiates and hashish at age 20.

4.  On 31 May 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for two specifications of failing to obey a lawful order and one specification of being disrespectful in conduct towards his superior noncommissioned officer.

5.  On 22 August 1973 court-martial charges were preferred against the applicant charging him with two specifications of assault.

6.  On 14 September 1973, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10, for the good of the service.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

7.  On 19 September 1973, the appropriate commander approved the applicant’s request for discharge.

8.  On 1 October 1973, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 1 year, 3 months, and        20 days of creditable active service with no lost time.

9.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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’s contentions have been considered.  

2.  The applicant was almost 20 years old when he enlisted and he was over     20 years old when he was assigned to Germany.  It is noted that the DA Form 2875-2 indicated he first used alcohol at age 13; cocaine, barbiturates, Darvon, tranquilizers, and other psychostimulants at age 18; and marijuana and “cough syrup” at age 17.  It appears that his drug use did not begin when he was assigned to Germany but started before he enlisted in the Army.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  There is insufficient evidence that would warrant upgrading the applicant’s discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__hof___  __jtm___  __rch___  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.




__Hubert O. Fry_______
          CHAIRPERSON




INDEX

CASE ID
AR20070011299
SUFFIX

RECON

DATE BOARDED
20080117
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19731001
DISCHARGE AUTHORITY
AR 635-200, ch 10
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.