RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  26 February 2008
	DOCKET NUMBER:  AR20070014204 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. John G. Heck

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 undesirable discharge be upgraded to general.   

2.  The applicant states, in effect, that he developed a drug addition while stationed in the Republic of Vietnam.  The Army failed to provide him with medical treatment for his addition.  He further states that had he received drug rehabilitation he would have fulfilled his military obligation.  Now, he has been diagnosed with diabetes and because of his bad discharge, cannot receive medical treatment or compensation from the Department of Veterans Affairs.  

3.  The applicant provides copies of his two DD Forms 214 (Report of Separation from Active Duty).

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 25 February 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 51A1O (Construction and Utility Worker).  He was subsequently assigned for duty at Fort Carson, Colorado. 

3.  On 1 February 1970, the applicant was discharged for the purpose of immediate reenlistment in the Regular Army.  He had attained private first class, pay grade E-3 and had completed 11 months and 7 days of creditable active duty.  His service was characterized as honorable.    

4.  On 2 February 1970, the applicant reenlisted in the Regular Army for 3 years. He was assigned for duty as a crawler tractor operator.

5.  On 21 April 1970, the applicant was assigned for duty as a cargo checker with the 402nd Transportation Company, in the Republic of Vietnam.  He was reassigned to the 504th Transportation Detachment on 13 June 1970 for duty as a tractor operator.

6.  On 23 August 1970, the applicant was assigned for duty as a wheel vehicle mechanic with the 379th Transportation Company.

7.  On 19 November 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful general regulation by being in an off-limits area, and for possession of 12 cigarettes containing marijuana.  The punishment included reduction to private, pay grade E-2 (suspended); a forfeiture of $70.00 pay per month for 
2 months, and 30 days restriction.

8.  On 2 January 1971, the suspended punishment was vacated by the imposing commander.  The available records do not contain any documentation explaining the circumstances for this action.

9.  On 12 March 1971, the applicant returned to the United States for duty with the 50th Engineer Company, West Point, New York.

10.  On 6 August 1975, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the periods from on or about 27 April to 16 June 1971; and 23 June 1971 to 27 July 1975 (1546 days).

11.  On 6 August 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

12.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further 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.   
13.  On 12 August 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 15 August 1975, the applicant was discharged accordingly.  He had completed a total of 2 years, 2 months and 27 days of creditable active military service and accrued 1546 days of time lost due to AWOL (907 days subsequent to the expiration of his term of service).

14.  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.

15.  Army Regulation 635-200 (Personnel Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate.

16.  The UCMJ provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Notwithstanding the applicant's assertion that had he received treatment for his drug addiction he would have fulfilled his military obligation, there is no available evidence to support this contention.  There is also no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to his problems.  



4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ LMD___  __JGH___  __LDS __ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.






_    _ Linda D. Simmons ___
          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.