RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080001690 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 discharge under other than honorable conditions be changed to a medical discharge.

2.  The applicant states, in effect, that at the time of his discharge he was supposed to receive a medical discharge due to drug related problems.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and four character reference letters. 

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 enlisted in the Regular Army on 23 March 1976 for a period of 
3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 5 May 1977, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 12 to on or about 19 April 1977.  His punishment consisted of a reduction to E-2 (suspended), extra duty, and restriction.

4.  On 24 March 1978, nonjudicial punishment was imposed against the applicant for absenting himself from his place of duty and disobeying a lawful order.  His punishment consisted of a forfeiture of pay and restriction (suspended).   

5.  On 27 March 1978, the applicant voluntarily referred himself to the Alcohol and Drug Abuse Prevention and Control Program.

6.  On 31 May 1978, the applicant was arrested for suspicion of possession of marijuana.
7.  On 12 June 1978, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 9 as a drug/alcohol rehabilitative failure.  This action was approved on 30 June 1978. 

8.  The incidents that led to the court-martial charges occurred on 2-3 July 1978.

9.  On 7 July 1978, court-martial charges were preferred against the applicant charging him with one specification of wrongful possession of marijuana; one specification of wrongful use of marijuana; one specification of wrongful transfer of marijuana; three specifications of breaking restriction; one specification of assault by grabbing a woman by the legs, holding her upside down, and stomping her in the chest and face with his feet, and holding her by her hair and beating her head against the floor; one specification of assault by placing a drinking glass upside down on a woman’s ear, while her head was on the floor, and stomping on it with his foot; one specification of assault by kicking a woman on the leg with his foot; one specification of wrongful possession of methamphetamine; one specification of wrongful use of methamphetamine; one specification of wrongful transfer of methamphetamine; and one specification of failing to go to his appointed place of duty.

10.  On 19 July 1978, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge.  He elected to submit a statement in his own behalf; however, the statement is not available for review.

11.  On 20 July 1978, additional court-martial charges were preferred against the applicant charging him with one specification of attempting to steal $10.00 by means of force and violence; one specification of breaking curfew restrictions; and one specification of resisting arrest. 

12.  On 26 July 1978, the approved chapter 9 discharge was withdrawn.

13.  On 27 July 1978, the separation authority approved the applicant’s request for discharge in lieu of court-martial and directed he receive a discharge under other than honorable conditions.

14.  On 2 August 1978, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had completed 2 years, 4 months, and 3 days of creditable active service and had 7 days of lost time.

15.  In support of his claim, the applicant provided four character reference letters from his pastor, therapist, and friends.  They attest the applicant is a productive and stable individual, and that he is honest, dependable, hard working, and a devoted single parent. 

16.  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 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.  

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that he was supposed to receive a medical discharge due to drug related problems.  Evidence of record shows the applicant’s approved chapter 9 discharge for drug/alcohol rehabilitation failure was withdrawn on 26 July 1978.

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be changed to a medical discharge.



3.  Since the applicant was separated under a regulatory provision that authorized a characterization of discharge of under other than honorable conditions, it does not appear he was eligible for physical disability processing.  Therefore, there is no basis for a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

X_____  __X___  _X_____           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.




      	___X_________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001690


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508