IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080007380 


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 discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general or honorable discharge.

2.  The applicant states, in effect, that his UOTHC was overly harsh for only 2 days time lost and his service related accident with medication limited his ability to serve.  He had served 3 years of a 4 year enlistment.  He adds that he did not know of any time limitations.  

3.  In a personal statement, he states that he had just returned from Korea in 1977 where he was during the event that took place where two officers were beaten to death.  They were on a red alert for 7 days not knowing if they were going to war.  He was three miles from the DMZ (Demilitarized Zone) and scared. He began to drink and use street drugs which were easily gotten.  He was not coping well and fell apart.  While he was there, he did get his high school diploma.  When he arrived back in the US he was lost.  He tried to fit in with military life but just drank and got high so as to lose his emotions.  He was promoted twice but lost his stripes quickly. 






4.  He states that he got hurt in Yakima, Washington, out on maneuvers.  He was offered a medical discharge but did not take it because he did not want to be seen as a loser by his dad.  He finally got control of his addiction and his mental health in 1995.  He has been a single father with 2 boys for 15 years.  He works with the mentally ill and substance abusers and has been there for 14 years.  He helps other people like himself to better their lives and find better quality in their lives.

5.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 applicant's record shows he enlisted in the Regular Army on 18 February 1976, for 4 years, with an established expiration of term of service (ETS) of 17 February 1980, with prior military service.  He was trained as a Combat Engineer, in military occupational specialty (MOS), 12B.  He served in Korea from 1 March 1976 to 30 March 1977.  Upon his return from Korea, he was assigned to Fort Lewis, Washington. 

3.  Between 12 August 1976 and 24 June 1977, he received nonjudicial punishment (NJP) on three occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for possession of marijuana, breaking restriction, for being absent without leave (AWOL) on 17 June 1977, and for being absent from his appointed place of duty.  His punishments consisted of a reduction to pay grade E-1, forfeitures of pay, and restriction and extra duties. 

4.  Charges were preferred against the applicant; however, these documents are unavailable for review by the Board.


5.  On 11 November 1977, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge UOTHC were issued to him.  He waived his rights and elected not to submit a statement in his own behalf.   

6.  On 14 November 1977, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge characterized as UOTHC and that he be reduced to the lowest enlisted grade.  

7.  The applicant was discharged in the rank/pay grade, Private/E-1, on 17 November 1977.  He had a total of 2 years, 3 months, and 17 days of net active service and 2 days of time lost due to AWOL.

8.  On 9 May 1985, the ADRB denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.


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 separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  It is apparent, from the authority for the applicant's discharge, that charges were preferred against the applicant; however, the nature of the charges is not known because these documents are not available in his personnel record for review.  The applicant failed to provide this information to the Board.  There is no evidence, and the applicant has provided none, upon which to base an upgrade of his UOTHC discharged.

4.  The applicant’s allegations that his discharge was overly harsh for only 2 days of time lost and service related accident with medication limited his ability to serve.  The evidence shows the he received three Article 15s for misconduct which contributed to his UOTHC discharge.  He provided no evidence, and there is none, in the available records regarding a service related incident with medication that limited his ability to service.  

5.  The applicant's personal statement described events that occurred while he served in Korea and upon his return to the US.  He cited adjustment problems that he began to experience in Korea for which he began to drink and use street drugs.  His drinking and drug use apparently continued on his return to the US as indicated in his personal statement.  He indicated that he got hurt in Yakima, Washington, out on maneuvers, and was offered a medical discharge but refused.  He later gained control of his addiction and mental health in 1995 and now has a better quality of life.  His statement, in itself, does not support an upgrade of his UOTHC discharge.

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




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)                                         AR20080007380



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ABCMR Record of Proceedings (cont)                                         AR20080007380



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