IN THE CASE OF:	  

		BOARD DATE:	  	   22 January 2009

		DOCKET NUMBER:  AR20080017936 


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 an honorable discharge.

2.  The applicant states, in effect, that the guidelines for sentencing for smoking a controlled substance were too severe.  He was young and immature and made one mistake at the end of his service, a month before being discharged.  He adds that he is now 60 years old and has raised a family.

3.  The applicant provides no additional documents 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.  On 24 June 1968, the applicant requested and received a moral wavier for civil offenses for induction into the Armed Forces.  On 11 September 1968, the applicant was inducted in the Army of United States; he was 21 years old at the time of his induction.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest grade he attained was pay grade E-3.

3.  The applicant's Enlisted Qualification Record (DA Form 20) indicates that he was reported for being absent without leave (AWOL) from 25 September 1969 to 
5 November 1969 and from 6 November 1969 to 13 December 1969.  However, his military record does not indicate that he was ever punished for the offenses.

4.  On 23 December 1969, the applicant was command referred for a psychiatric evaluation.  The applicant was diagnosed as having inadequate personality manifested by drug use,  inefficiency, inadaptability, apathy, stubbornness, inability to accept discipline and authority, and a lack of foresight and motivation. The applicant had numerous incidents of misconduct and deviant behavior, which began at an early age by stealing, running away from home, and suspensions from school.  The applicant also admitted that he had been arrested for breaking and entering, spent 2 1/2 months in jail, and placed on 2-year probation.  The psychiatric evaluation found the applicant alert, fully oriented and cooperative.  The psychiatrist found that the applicant met psychiatric retention standards and cleared him for any action deemed appropriate by the command, including separation from the military.

5.  On 26 December 1969, while assigned to a unit in Vietnam, the applicant received nonjudicial punishment for absenting himself, without authority, from his place of duty.  His imposed punishment was a reduction to pay grade E-2 and
7 days of restriction.  
 
6.  On 25 January 1970, the applicant was convicted by a special court-martial of willfully disobeying a lawful order from a superior commissioned officer.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of $75.00 pay per month for 4 months, and a reduction to pay grade E-1.  The sentence was adjudicated on 25 January 1970 and approved on 23 February 1970.   

7.  On 20 March 1970, while serving in Vietnam, a court-martial charge was preferred against the applicant for willfully disobeying a lawful order to go to the field from a superior commissioned officer.

8.  On 13 April 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a bad conduct discharge or a dishonorable discharge, and of the rights available to him.  He acknowledged that he had not been coerced with respect to the request for discharge.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  He also stated his understanding that if his 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 Veterans Administration (VA) [now known as 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.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.  The applicant did not submit a statement in his own behalf.

9.  On 21 April 1970, a Report of Medical Examination found the applicant fit for retention or separation from service.

10.  On 9 May 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

11.  On 21 May 1970, the applicant was discharged.  The separation document (DD Form 214) he was issued confirms he completed 1 year, 5 months, and 
22 days of creditable active service and accrued 80 days of time lost.  

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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.  An under other than honorable conditions discharge is normally considered appropriate; however, at the time of the applicant's separation an undesirable discharge was considered appropriate.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge was carefully considered and found to be insufficient in merit.  

2.  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, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.   

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.  

4.  Records show that the applicant was 22 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

5.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request. 

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.



      __________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)                                         AR20080017936



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ABCMR Record of Proceedings (cont)                                         AR20080017936



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