RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070013694 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 an upgrade of his discharge. 

2.  The applicant states that he was a drug addict and an alcoholic for the two years prior to his discharge and should have been medically discharged.

3.  The applicant provided a copy of VA Form 21-4138 (Statement in Support of Claim), dated 27 August 2007, in support of his application.

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's records show that he enlisted in the Regular Army on 5 January 1968 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64B (Heavy Truck Driver).  His records also show that he reenlisted on 26 March 1970 for a period of 4 years.  The highest rank he attained during his military service was specialist four/E-4.

3.  The applicant's records show that he was awarded the National Defense Service Medal, the Good Conduct Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16).  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 5 September 1968, for being absent without leave during the period on or about 2 September 1968 to on or about 3 September 1968; disobeying a lawful order on 1 September 1968; and disobeying a lawful order on 2 September 1968.  His punishment consisted of reduction to the grade of private/E-2, 14 days of extra duty, and 14 days of restriction.

	b.  On 22 November 1968, for disobeying a lawful order and absenting himself from his appointed place of duty on 18 November 1968.  His punishment consisted of 14 days of restriction and 14 days of extra duty. 

c.  On 4 December 1968, for twice disobeying a lawful order on 30 November 1968.  His punishment consisted of reduction to the grade of private/E-1 (suspended for 60 days), 14 days of extra duty, and 14 days of restriction.  However, on 9 December 1968, the suspension of the punishment of reduction to private/E-1, suspended for 60 days, was vacated. 

d.  On 3 June 1969, for failing to go to his appointed place of duty on 31 May 1969.  His punishment consisted of forfeiture of $15.00 pay per month for one month, 14 days of extra duty, and 14 days of restriction.

	e.  On 8 November 1969, for failing to properly secure his individual weapon on 6 November 1969.  His punishment consisted of forfeiture of $15.00 pay per month for one month, 14 days of extra duty, and 14 days of restriction.

f.  On 14 June 1971, for being disorderly while in uniform, to the disgrace of the Armed Forces, on 2 June 1971.  His punishment consisted of forfeiture of $25.00 pay per month for one month and 7 days of extra duty.

	g.  On 2 July 1971, for operating a privately owned vehicle (POV) which was registered in a non-operational condition, on 30 June 1971; operating an uninsured POV on 30 June 1971; and operating a POV with license plates registered on another vehicle, on or about 30 June 1970.  His punishment consisted of reduction to private first class/E-3 (suspended for 60 days), forfeiture of $25.00 pay per month for one month, and 7 days of extra duty. 

5.  On 21 July 1971, Court-Martial charges were preferred against the applicant for failing to obey a lawful general regulation, on or about 20 July 1971; assaulting a Soldier by striking him with his fists, on or about 20 July 1971; being drunk and disorderly, on or about 20 July 1971; and wrongfully communicating to another Soldier a threat to kill him, on or about 21 July 1971.  



6.  On 17 November 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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. 

8.  On 17 November 1971, the applicant's immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  The immediate commander remarked that the applicant’s off duty conduct failed to meet minimum acceptable standards and that he had repeatedly shown a disregard of the rights of his fellow Soldiers and unwillingness to accept the responsibilities of his position.  He further added that the applicant’s retention with even the minimal results of punitive action would not have resulted in any rehabilitation and he would have continued to be a liability to any unit within the Army.  

9.  On 22 November 1971, the intermediate commander echoed the immediate commander’s remarks and recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.   

10.  On 3 December 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to private/E-1.  On 21 December 1971, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge shows that he was discharged for the good of the service with an Under Conditions Other Than Honorable character of service.  This form further confirms the applicant had completed a total of 3 years, 11 months, and 17 days of creditable active military service.

11.  There is no indication in the applicant’s records that he suffered from a drug or alcohol problem.  

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 

13.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 discharge should be upgraded.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of alcohol or drug abuse.  Additionally, there is no evidence and the applicant has not provided sufficient evidence showing that he was diagnosed and/or treated for such abuse. 
3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his repeated record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __rml___  __qas___  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.




						William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.