IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080004103 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was volunteered for military service because of legal problems and drugs.  While in service his drug abuse became worse.  That is why he was missing from duty and considered absent without leave (AWOL).  He was always out getting drugs or on sick call.

3.  The applicant provided no additional evidence in support of his request.

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 evidence shows the applicant enlisted in the Regular Army for 3 years on 30 November 1972.  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and his advanced individual training at Fort Sill, Oklahoma.  On completion of his advanced training, he was awarded the military occupational specialty 13A, Field Artillery Basic and remained assigned to Fort Sill as his first duty station.

3.  On 30 March 1973, the applicant was advanced to the rank and pay grade, Private, E-2.  This would be the highest rank and pay grade he would attain while he served on active duty.  The record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

4.  On 30 March 1973, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully having marijuana in his possession on 24 March 1973.  The imposed punishment was a forfeiture of $150.00 per month for two months, restriction to the battery area for 40 days, and to perform extra duties for 40 days.  The applicant did not appeal the punishment. 

5.  On 19 June 1973, the applicant received nonjudicial punishment, under the provisions of Article 15 of the UCMJ, for failing to go to his prescribed place of duty on 13 and on 14 June 1973.  The imposed punishment was a forfeiture of $50.00, restriction to the battery area for 14 days, and to perform extra duties for 14 days.  The applicant did not appeal the punishment. 

6.  On 8 November 1973, the applicant was tried by a special court-martial.  He was found guilty of departing AWOL on 3 August 1973 and remaining so absent until 21 August 1973, and of departing AWOL on 23 August 1973 and remaining so absent until 16 September 1973.  The applicant was sentenced to be reduced to pay grade E-1, to forfeit $100.00 and to be confined at hard labor for 30 days.  The sentence was approved and ordered executed on 26 November 1973.

7.  On 28 January 1974, charges were preferred against the applicant for absenting himself without leave on 3 December 1973 and remaining so absent until 22 January 1974.

8.  On 28 January 1974, the applicant voluntarily submitted a request for discharge for the good of the service.  The applicant stated he had not been coerced with respect to his request for discharge and had been advised of the implications that were attached to it.

9.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 29 January 1974 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

10.  In his request for discharge, the applicant stated he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further stated, in effect, that he further understood that as a result of issuance of such a discharge he could be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the Veteran’s Administration [now the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  The applicant stated that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge and after having been advised of the possible effects of an undesirable discharge, he added he had personally made the choices indicated in his request for discharge.

12.  The applicant elected to submit a statement in his own behalf.  In his statement, he stated, in effect, he had been in the Army for approximately a year and he had absented himself from duty four times and in the same time he had received four Article 15s.  His entire time in the Army had not been devoted to duty.  He received one court-martial and had been in the stockade three months. When he received pay and upon leaving the facility he went home and used the money on drugs.  The problems he had with drugs, he stated, is why he felt he should be discharged from the military service.  He had no other thing in life to cling to other than drugs.  He had been arrested for drugs twice and still had no desire to give them up.  He concluded his statement by saying that he never actually wanted into the service in the first place.  He only joined to keep from going to jail for a felony that he had been charged with.  He felt that for the Army’s good and for his own, he should be discharged and sent home.

13.  On 29 January 1974, the applicant underwent a separation physical examination.  A Standard Form (SF) 93, Report of Medical Examination, and SF 89, Report of Medical History were completed in conjunction with this physical examination.  The applicant was found qualified for separation.

14.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service, and on 18 March 1974, the approving authority approved the applicant’s request for discharge.

15.  The applicant was discharged under the provisions of Army Regulation 
635-200, Chapter 10, for the good of the service, on 21 March 1974.  He was issued an undesirable discharge, with his service characterized as under other than honorable conditions.  He was discharged in the rank and pay grade, Private, E-1.  On the date of his discharge, the applicant had completed 1 year and 11 days net active service with 103 days time lost due to AWOL and confinement.

16.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  An undesirable discharge, with service characterized as under other than honorable conditions was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

18.  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 separation specifically allows such characterization.





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

2.  The available evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge was normally under other than honorable conditions and the evidence shows the applicant was fully aware of this prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service are both proper and equitable.

3.  The applicant’s entire record of service was reviewed.  The applicant's record shows he received non-judicial punishment under the UCMJ twice and was tried and convicted by a special court-martial once.  When the applicant was informed he had been charged and would be tried by court-martial for his absence which extended from 3 December 1973 until 22 January 1974, he elected to seek discharge for the good of the service, in lieu of trial by court-martial.

4.  In a statement the applicant submitted at the time he requested discharge, he stated, in effect, he never actually wanted to join the Army in the first place.  He only joined to keep from going to jail for a felony that he had been charged with.  He felt that for the Army’s good and for his own, he should be discharged and sent home.

5.  The quality of the applicant’s service was considered.  The highest rank and pay grade he achieved while he was in service was, Private, E-2.  His record 
contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his undesirable discharge.  The applicant's service was determined not to be sufficiently meritorious to warrant an upgrade of his discharge to either a general or a fully honorable discharge.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his undesirable 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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004103



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004103



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1