IN THE CASE OF:	  

		BOARD DATE:	       19 March 2009

		DOCKET NUMBER:  AR20080016653


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, his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD) or changed to a medical discharge.

2.  The applicant states in a self-authored letter, dated 7 June 1996:

	a.  he was born and raised in West Virginia and enlisted with his brother under the “Buddy Plan” for training as an aircraft mechanic;

	b.  he and his brother underwent basic combat training at Fort Knox, KY, followed by attendance at the basic airborne course at Fort Benning, GA, where they earned the Parachutist Badge;

	c.  following airborne training, the Army did not honor their enlistment contracts, sending him and his brother to the cook’s and baker’s school;

	d.  he and his brother graduated and they were awarded military occupational specialty (MOS) 94B (Cook);

	e.  they were sent to Fort Bragg, NC, for duty as cooks;

   f.  at Fort Bragg, they attempted to obtain aircraft mechanic training without success and in desperation, the applicant – but not his brother – reenlisted in order to leave Fort Bragg and go to Vietnam;

	g.  he served more than 11 months in Vietnam, during which time he began using drugs which led to his administrative discharge with a UD; and

	h.  once out of the Army, he suffered from flashbacks which caused a confrontation with police in 1996 that led to his arrest.

3.  The applicant provides:

	a.  a personal letter, dated 7 June 1996;

	b.  two letters from his spouse – one to whom it may concern, undated, and one to the President, dated 9 June 1996;

	c.  a letter from the brother with whom he enlisted, dated 11 February 2008; 

	d.  an undated letter from another brother; and

	e.  a handwritten letter from a sister, dated 17 January 2008.

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 ABCMR originally considered the applicant’s request on 26 December 1974.  The Record of Proceedings is not available; therefore, this case is being considered “de novo.”

3.  The applicant enlisted in the Regular Army for 3 years on 1 August 1969 and signed a DA Form 3286-3 (Statements for Enlistment – Part VI - Regular Army Enlistment Option) confirming that his initial assignment to training and/or duty would be determined in accordance with the needs of the Army.  In other words, he was never promised a specific enlistment option.


4.  The applicant completed basic combat and advanced individual training at Fort Knox.  He was awarded MOS 94B and transferred to Fort Benning for the basic airborne course.  Upon completion of the basic airborne course, he was transferred to Fort Bragg for duty in MOS 94B2P (Airborne Cook).

5.  On 29 June 1970, the applicant reenlisted for 3 years for an assignment to Vietnam.  He arrived in Vietnam on or about 2 September 1970.  He served as a cook with the 173rd Support Battalion and 503rd Infantry Regiment of the 173rd Airborne Brigade.  He served in Vietnam until on or about 16 July 1971.

6.  While in Vietnam, the applicant became involved with illegal drugs (marijuana and heroin) and his duty performance, conduct, and efficiency suffered.  On 28 May 1971, court-martial charges were preferred against him for being absent without leave (AWOL), two specifications of disobeying a lawful order, and two specifications of possession of illegal drugs (heroin and binoctal).

7.  On 30 June 1971, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial.  In so doing, he acknowledged he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the UD that he might receive.  He declined to submit a statement in his own behalf.

8.  On 9 July 1971, the Commanding General, 173rd Airborne Brigade approved the applicant’s request for discharge for the good of the service and directed he be issued a UD.  The applicant was transferred to the U.S. Army Transfer Station at Fort Lewis, WA for discharge.

9.  At Fort Lewis, the applicant was processed and discharged on 28 July 1971.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was issued shows he was separated under the provisions of Army Regulation 635-212 for unfitness, not Army Regulation 635-200, chapter 10.

10.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 31 August 1972, denied his request.



11.  The applicant petitioned the ABCMR seeking a discharge upgrade.  The ABCMR, after considering his case on 26 December 1974, denied the applicant’s request.  The Record of Proceeding is unavailable.

12.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an Honorable Discharge (HD) 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.  Paragraph 3-7b provides that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or 
retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.  Army Regulation 635-40 further provides that a Soldier who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks a discharge upgrade or a medical discharge.

2.  The applicant was a heroin user in Vietnam; he was caught with drugs on his person, and court-martial charges were duly preferred against him.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial, and his request was accepted.

3.  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.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial, the Federal conviction, and the punitive discharge that he might have received. 

5.  The applicant has offered no evidence of any medical condition which would have necessitated referring him to the Army’s physical disability evaluation system.  However, even if the applicant possessed a medical condition, he would not have been eligible for disability evaluation processing since he was charged with an offense for which he could be dismissed or given a punitive 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 satisfactorily 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.


															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)                                         AR20080016653



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ABCMR Record of Proceedings (cont)                                         AR20080016653



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