IN THE CASE OF:	  

		BOARD DATE:	  	   12 May 2009

		DOCKET NUMBER:  AR20090001539 


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, upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he had a drug habit when he was accepted into the Army.  He also states that it was his intention to have the military help clean up his habit so he could serve his country.

     a.  The applicant states after a year of military service he could not maintain his habit, so he went absent without leave (AWOL).

     b.  The applicant states he does not have any documents to support his request.  He adds that he entered a drug program funded by the government at a methadone clinic on the corner of Kerchival and Holcomb in Detroit, Michigan, where his medical documentation may be on file.

     c.  The applicant concludes by stating he was on drugs when he entered the Army and feels his case should have been handled differently.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of
12 August 1971.





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 military personnel records contain a Standard Form (SF) 89 (Report of Medical History), dated 29 August 1969, which was completed by the applicant at the time of his pre-induction medical examination.  In response to Item 20 (Have You Ever Had or Have You Now), “Any Drug or Narcotic Habit” the applicant placed a checkmark in the “No” column.   The SF 89 also contains, in pertinent part, the statement “Warning:  A false or dishonest answer to any of the questions on this form may be punished by fine or imprisonment (18 USC 1001 [Title 18, U.S. Code, section 1001]).  I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge.  I authorize any of the doctors, hospitals, or clinics mentioned above to furnish the Government a complete transcript of my medical record for purposes of processing my application for this employment or service.”  The SF 89 shows the applicant placed his signature on the form immediately following this statement.

3.  The applicant's military personnel records show he was inducted into the Army of the United States for a period of 2 years and entered active duty on
9 March 1970.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).

4.  The applicant's military personnel records contain a DA Form 188 (Extract Copy of Morning Report), dated 29 June 1971.  This document shows that the applicant’s duty status was reported as AWOL, effective 16 October 1970; changed to dropped from the rolls (DFR) as a deserter, effective 2400 hours,
14 November 1970; that he surrendered to military authorities on 22 June 1971; and was returned to duty on 24 June 1971.


5.  The applicant's military personnel records contain a copy of Headquarters,
1st Infantry Division (Mechanized), Fort Riley, Kansas, Special Orders Number 221, dated 9 August 1971, that show, in pertinent part, the applicant was DFR of the U.S. Army Overseas Replacement Station, Fort Lewis, Washington; surrendered to military authorities at Detroit, Michigan, and returned to military control on 22 June 1971; and he was assigned to the Personnel Control Facility, Fort Riley, effective 24 June 1971.

6.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 2 July 1971, that shows the Commander, Holding Company,
Personnel Control Facility, Fort Riley, preferred charges against the applicant, in that he did, on or about 16 October 1970, without authority, absent himself from his unit, to wit:  U.S. Army Overseas Replacement Station, located at Fort Lewis, and did remain so absent until on or about 22 June 1971.

7.  The applicant’s military personnel records contain a SF 89, dated 25 June 1971, which was completed by the applicant at the time of his medical examination prior to his separation from active duty.  In response to Item
20 (Have You Ever Had or Have You Now), “Any Drug or Narcotic Habit” the applicant placed a checkmark in the “No” column.   The SF 89 also contains, in pertinent part, the statement “Warning:  A false or dishonest answer to any of the questions on this form may be punished by fine or imprisonment (18 USC 1001).  I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge.  I authorize any of the doctors, hospitals, or clinics mentioned above to furnish the Government a complete transcript of my medical record for purposes of processing my application for this employment or service.”  The SF 89 shows the applicant placed his signature on the form immediately following this statement.

8.  On 16 July 1971, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant’s request for discharge shows he had not been subject to coercion with respect to his request for discharge.  The applicant’s request also shows he was afforded the opportunity to consult with counsel, that he consulted with counsel, that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter 

substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the applicant elected not to submit any statements in his own behalf.

9.  On 26 July 1971, the Commander, Processing Company, Personnel Control Facility, Fort Riley, recommended approval of the applicant’s request for discharge from the Army, under the provisions of Army Regulation 635-200,
chapter 10.  The commander stated the applicant’s military record indicated that retention was neither practicable nor desirable and recommended that the applicant be furnished an Undesirable Discharge Certificate.

10.  On 26 July 1971, the Commander, Personnel Control Facility, Fort Riley, Kansas, recommended approval of the applicant’s request for discharge from the Army, under the provisions of Army Regulation 635-200, chapter 10.  The commander stated the applicant’s military record indicated that retention was neither practicable nor desirable and, in the commander’s opinion, further retention of the applicant would only result in more offenses and more unproductive time.  The commander also recommended that the applicant be furnished an Undesirable Discharge Certificate.

11.  On 30 July 1971, the Commander, 1st Infantry Division (Mechanized) and Fort Riley, reviewed and approved the applicant’s request for discharge for the good of the service, under the provisions of Army Regulation 635-200,
chapter 10.  The commanding general also directed the applicant be issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 12 August 1971.

12.  The applicant's military personnel records contain his DD Form 214 that shows he was inducted into the Army on 9 March 1970 and that he was discharged on 12 August 1971, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service with Separation Program Number (SPN) 246, and issued a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 also shows that at the time of his discharge the applicant had completed 8 months and 25 days of net active service this period.  Item 26a (Non-Pay Periods Time Lost) contains the entry “See Item #30.”  Item 30 (Remarks), in pertinent part, shows the applicant had 249 days lost under Title 10, U.S. Code, section 972, from 16 October 1970 through 21 June 1971.

13.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

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

15.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

16.  Army Regulation 635-5-1 (SPN Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.

17.  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.

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 the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded because he had a drug habit when he was accepted in the Army, he could not maintain his habit during his military service, and this caused him to go AWOL.
2.  There is no evidence of record, and the applicant provides insufficient evidence, to show he had a drug habit when he was accepted into the Army.
In this regard, the evidence of record shows that at that time of his pre-induction medical examination, the applicant affirmed that he did not have any drug or narcotic habit.  In addition, the evidence of record also shows that at that time of his separation medical examination, the applicant affirmed that he did not have any drug or narcotic habit.  Thus, the evidence of record refutes the applicant’s contention that he had a drug habit, which caused him to go AWOL.

3.  The evidence of record confirms that the applicant’s 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 voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that charges were preferred against the applicant, the punishment for which included a bad conduct or dishonorable discharge.  In addition, records show that the applicant completed less than
9 months of his initial military service obligation.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions or an honorable discharge.

5.  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)                                         AR20090001539



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ABCMR Record of Proceedings (cont)                                         AR20090001539



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