RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080002348 


	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 that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that his discharge should be upgraded based on personal trauma.  He was beaten while he was in the U. S. Marine Corps (USMC) and was discharged due to being unfit for military service.  Because he still wanted to serve, he joined the Army.  While in the Army, he was sexually assaulted and beaten up before he went to Vietnam.  As a result, when he went to Vietnam he started to use drugs and mistrusted the chain of command, which led to his pattern of misconduct and discharge.

3.  The applicant provides a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), initiated on November 1970; 13 Department of Veterans Affairs (VA) Progress Notes, dated 8 July 2004, 2 August 2004, 14 September 2004, 20 October 2004, 24 November 2004, 9 December 2004, 26 April 2004,  29 June 2005, 7 September 2005, 14 February 2006, 24 August 2006,              16 October 2006, and 18 October 2006, and 4 pages of a VA Form 21-4138 (Statement in Support of Claim).

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 August 1970, the applicant completed a DD Form 398 (Statement of Personal History).  On this form, he indicated that he had never served a tour of extended active duty from which he was discharged or separated.  He indicated that he worked at the Navy Exchange, U. S. Navy Submarine Base, Groton, CT from 1969 to 1970.  


3.  In an Adjutant General Personnel Center (AGPERSCEN) Form 13 (Request for Statement of Service), the U. S. Army Personnel Service Support Center sent a request to the Commandant of the USMC requesting verification of the applicant’s USMC inactive service from 17 December 1969 to 1 January 1970 and his active USMC service from 2 January 1970 to 6 February 1970.

4.  The applicant was born on 18 November 1952.  He enlisted in the Regular Army on 31 August 1970.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

5.  On 18 November 1970, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order to get out of bed for reveille.

6.  The applicant arrived in Vietnam on or about 24 August 1971.

7.  Between December 1971 and March 1972, the applicant accepted NJP under Article 15, UCMJ on four occasions for: being in an off-limits area, possessing a concealed weapon, and wrongfully making and using with intent to deceive a Military Assistance Command Vietnam Installation Identification Card; for disobeying a lawful order to get ready for guard duty and for failing to repair to his appointed place of duty; for sleeping on his post as a guard; and for failing to go to his appointed place of duty.  

8.  The applicant departed Vietnam on 6 June 1972.

9.  Between July 1972 and January 1973, the applicant accepted NJP under Article 15, UCMJ on five occasions for: going the wrong way on a one-way street; for failing to go to his appointed place of duty and wrongfully appearing in an unclean and improperly-worn field jacket; for three specifications of failing to go to his appointed place of duty; for two specifications of being incapacitated for the proper performance of his duties as a result of previous indulgence in a barbiturate drug, for failing to go to his appointed place of duty, and for two specifications of breaking restriction; and for rolling through a red light, for disobeying a lawful order to report to the First Sergeant in a duty uniform, and for breaking restriction.

10.  In a Personal Statement Regarding Administrative Eliminations, the applicant, when asked about his attitude towards the Army, wrote, “I think that the Army is very unorganized for me, when it it (sic) come to work.”  

11.  On 30 January 1973, court-martial charges were preferred against the applicant charging him with assaulting his superior noncommissioned officer by pushing him; of wrongfully possessing 84.54 grams, more or less, of marijuana; of failing to register a .38 caliber pistol with the Provost Marshal and by not securing a .38 caliber pistol in the unit arms room; and of failing to register a    .22 caliber pistol with the Provost Marshal and by not securing a .22 caliber pistol in the unit arms room.  

12.  On 1 February 1973, legal counsel informed the applicant, in writing, that he (counsel) had been informed that the applicant desired to submit a request for discharge for the good of the service.  Before counsel would permit him to make his request, he wanted to make it clear that the Army was not trying to separate him at that point.  If he requested discharge for the good of the service, it must be the applicant’s voluntary choice.  No person could make, force, or coerce him to ask for the discharge.  Counsel advised the applicant of his rights.  

13.  On or about 1 February 1973, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He stated he was not subjected to coercion with respect to his request.  He understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and furnished an undesirable discharge certificate.  He was advised as to the possible effect of an undesirable discharge and understood that he would be deprived of many or all benefits administered by the VA.  He also understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He submitted no statement in his own behalf.

14.  On 6 February 1973, the appropriate authority approved the applicant’s request and directed he receive an undesirable discharge certificate.

15.  A DA Form 2496 (Disposition Form), dated 6 February 1973, indicated the applicant had a significant drug problem and was determined to be drug dependent.  It was therefore necessary that he receive the minimal 30-day treatment in a VA hospital as part of his discharge procedure.  He began using opiates while in Vietnam.  He continued his use of drugs while stationed at Fort Carson, CO.  His use of drugs included marijuana, hallucinogens, barbiturates, and opiates.  He was using drugs quite heavily while initially detained at the Post stockade.  He could not be detoxified, however, because of a back injury that required him to remain on barbiturates.  


16.  On 6 April 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 a characterization of service of under other than honorable conditions.  He had completed 2 years, 7 months, and 2 days of creditable active service and had 4 days of lost time.

17.  In May 1977, the applicant wrote to the President of the United States requesting a discharge upgrade.  He stated that he felt he deserved an upgrade because he served in Vietnam and he thought he served his country well.  

18.  In May 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade in his discharge.  He stated he thought he deserved a better discharge because he served his country in Vietnam and he was talked into signing papers for a discharge he did not deserve.  On 8 January 1979, the ADRB denied his request for an upgraded discharge.

19.  In December 1979, the applicant reapplied to the ADRB for an upgrade of his discharge.  He stated he felt that as a veteran of the Army and the USMC that he tried to serve his country to the best of his ability.  He believed his discharge should be changed because at the time of his discharge he was under a lot of pressure and he did not have enough time to think about what was going on.  The ADRB did not reconsider his case.

20.  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.  At the time, an undesirable discharge was normally appropriate.

21.  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.  


22.  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 carefully considered.  

2.  However, while there is some indication the applicant may have served in the USMC prior to his enlistment in the Army, there is no evidence of record and the applicant provides none (such as his USMC DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)) to confirm that service or to show why he was discharged from the USMC.  

3.  The applicant had several opportunities in which he could have raised the issues of his mistreatment as mitigating circumstances, even if he decided not to mention the sexual assaults.  However, he failed to raise the issue either with his request for discharge, in his 1977 letter to the President, in his 1977 application to the ADRB, or in his 1979 application to the ADRB.

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

5.  Considering the overall quality of the applicant’s service, with no evidence to substantiate any mitigating circumstances, there is insufficient evidence that would warrant granting the relief requested.

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.




      __          xx_______
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080002348


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