IN THE CASE OF:	  

		BOARD DATE:	       6 November 2008

		DOCKET NUMBER:  AR20080014751 


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 an upgrade of his discharge to honorable.

2.  The applicant states that his discharge was inequitable and inconsistent with the policies and traditions of the Army and that all of his disciplinary problems arose as a direct result of continuous abuse of alcohol, methamphetamine, and other mind-altering drugs.  He also adds that he became addicted to drugs after entering the Army and that he should have been treated for his addiction by the Army when those problems arose.  He concludes that he was still an addict when he was discharged and his pattern of misconduct continued as a result of this addiction.  Had he been treated for this abuse, his life-style could have and should have been corrected.

3.  The applicant did not provide any additional documentary evidence in support of his application.

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 records show he enlisted in the Regular Army for a period of 3 years on 16 October 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantry).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  On 29 September 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period of on or about 22 August 1971 through on or about 8 September 1971.  His punishment consisted of forfeiture of $75.00 pay per month for 2 months.

4.  On 15 March 1972, the applicant pled guilty at a Summary Court-Martial to two specifications of being AWOL during the periods of on or about 11 January 1972 through on or about 17 January 1972 and on or about 19 January 1972 through on or about 21 February 1972.  The Court sentenced him to forfeiture of $100.00 pay for one month, reduction to the rank/grade of private (PVT)/E-1, and 60 days of restriction.  The sentence was approved and ordered executed on 15 March 1972.

5.  On 10 July 1972, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 11 August 1972.  He remained in a deserter status until he was apprehended by civil authorities and returned to military control on 18 December 1972.

6.  On 3 January 1973, court-martial charges were preferred against the applicant for one specification of being AWOL during the period of on or about 10 July 1972 until on or about 18 December 1972.

7.  On 8 January 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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. 

9.  On 8 January 1973, the applicant's immediate commander remarked that the applicant had demonstrated his unwillingness to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  He further recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 12 January 1973, the applicant’s intermediate commander remarked that the applicant would never be a productive member and further recommended the request be approved with an Undesirable Discharge Certificate.

11.  On 16 January 1973, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 19 January 1973, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year, 7 months, and 24 days of creditable active military service and had 224 days of lost time due to AWOL.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  AR 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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
14.  AR 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  AR 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 contends that his discharge should be upgraded.

2.  The applicant’s contention that he was addicted to drugs was considered; however, it was found to be without merit.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows that his extensive history of AWOL was a result of a drug addiction.  Even if he encountered drug abuse, he had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

3.  Contrary to the applicant’s contention that his misconduct was a result of drug abuse, his record shows that he had an extensive history of AWOL as evidenced by his acceptance of nonjudicial punishment under the provisions of Article15 of the UCMJ for one instance of AWOL and a guilty plea at a Summary Court-Martial for yet two more instances of AWOL.

4.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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.


															XXX
      _________________________
                 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)                                         AR20080014751



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014751



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1