IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20090001901 


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.

2.  The applicant states that his record is in error and unjust as it does not accurately reflect the circumstances related to his discharge.  Specifically, he states that:

	a.  it was unjust to characterize his discharge as other than honorable based on urinalysis results as a Federal Court found that it was unjust to base a character of service on the results of a compelled urinalysis; the courts found that Soldiers discharged with an under other than honorable character of service shall automatically have it upgraded;

	b.  his separation program designator (SPD) (formerly known as separation program number (SPN)) 246 is for the good of the service, which is inequitable and was used arbitrarily.  It does not give proper notice of the reason for his discharge as it is vague;

	c.  he was young at the time and had emotional problems related to acculturation conflicts which he developed when he arrived abroad.  He suffered from adjustment disorder which was neither addressed nor treated by military medical personnel;

	d.  the Army did not address his substance dependency problem which impaired his ability to serve.  Two medical professionals recommended his referral to a drug rehabilitation program; however, his chain of command did not address the issue and left him to deal with his drug dependency on his own;

	e.  he was diagnosed with pseudofoliculitis, a condition that caused facial rash when he shaved and, although he was under doctors' orders not to shave his beard, he was treated unfairly by officers who referred to him as unprofessional and insubordinate because he would not shave his beard; and

	f.  he served during the Vietnam era and openly expressed his disapproval of the war which caused his commanding officer to treat him unfairly due to his opinion.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 12 April 1974; a copy of his DA Form 3647-1 (Clinical Record Cover Sheet), dated 2 October 1973; a copy of his Standard Form 502 (Clinical Record-Narrative Summary), dated 2 October 1973; a copy of a memorandum, dated 26 September 1973; a copy of his Standard Form 88 (Report of Medical Examination), dated 8 March 1974; a copy of his DA Forms 3349 (Medical Condition-Physical Profile Record), dated 3 February 1973, 8 May 1973, 5 September 1973, 2 October 1973, 4 October 1973, 15 October 1973, and 27 November 1973; and a copy of an undated character reference letter from his pastor 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 record shows he was born on 12 November 1953 and enlisted in the Regular Army at the age of 19 years for a period of 3 years on 16 January 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76A (Supply Clerk).  The highest rank/grade he attained during his military service was private/E-2.

3.  On 19 February 1973, while still in basic combat training, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting his squad leader with his fists.  His punishment consisted of a forfeiture of $60.00 pay per month, 14 days of restriction, and 14 days of extra duty.

4.  The applicant's record also shows that subsequent to completion of MOS training, the applicant was reassigned to Germany where he served from on or about 31 May 1973 to on or about 11 April 1974.

5.  The applicant's record shows he was awarded the National Defense Service Medal.  His record does not show any achievements or acts of special recognition during his military service.

6.  On 26 September 1973, just 4 months after his arrival in Germany, the applicant complained of dark urine and was subsequently hospitalized at the U.S. Army Hospital, Wurzburg.  He was diagnosed with hepatitis resulting from his extensive use of heroin, amphetamines, cocaine, hashish, and other drugs.  He was treated with medications and bed rest and was discharged after 7 days of hospitalization on 2 October 1973.  He was also referred to the Schweinfurt Community Drug Rehabilitation Program after discharge.  However, a social worker officer indicated that the applicant expressed no desire to stop taking drugs in the future.

7.  On 13 October 1973, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for possessing a smoking pipe containing hashish on or about 10 October 1973.  His punishment consisted of a forfeiture of $84.00 pay for 1 month and 14 days of extra duty.

8.  On 3 February 1974, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to military control on 2 March 1974.

9.  On 8 March 1974, court-martial charges were preferred against the applicant for one specification of stealing cash money of a value of about $75.00 from another Soldier, against his will and by means of force and putting him in fear , on or about 18 January 1974. 

10.  On 21 March 1974, additional court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 3 February 1974 through on or about 2 March 1974.

11.  On 21 March 1974, 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 635-200 (Personnel Separations).

12.  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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

13.  On 25 March 1974, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s request for discharge with the issuance of an Undesirable Discharge Certificate.

14.  On 26 March 1974, the Staff Judge Advocate, 3rd Infantry Division, conducted a legal review of the applicant’s request.  He indicated that the discharge was not based in whole or in part on drugs and that the proceeding was not based on evidence of any drug obtained from or as a result of a drug inspection.  He also added that the discharge was in accordance with the 8 February 1974 order of the U.S. District Judge in the Committee for GI Rights, Civil Action Number 835-73.

15.  On 28 March 1974, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 12 April 1974, 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 in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed 1 year, 1 month, and 27 days of creditable active military service and had 28 days of lost time.  Item 9c (Authority and Reason) shows his SPD code as "246."

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

17.  The applicant submitted copies of several physical profile records issued on various dates throughout his military service that show he had a medical condition that restricted his shaving (shaving profile).

18.  The applicant submitted an undated character reference letter from his pastor in which the pastor states that the applicant is a faithful member and in good standing in the church.  He is a very conscientious, dependable, and hard-working individual who actively participates in church activities and who has great leadership abilities.

19.  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 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.

20.  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.

21.  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.

22.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic and/or numeric combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The regulation in effect at the time stated, in pertinent part, that the SPD code of "246" was used when the authority for discharge for the good of the service under chapter 10 of Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  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 Army Regulation 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.

3.  With respect to the applicant's arguments:

	a.  that it was unjust to characterize his discharge as other than honorable based on urinalysis results, there is no evidence in the applicant's record and the applicant did not provide any evidence that shows he was discharged because of his drug habit.  The applicant's court-martial specifications were stealing and AWOL.  The Staff Judge Advocate's review of his case clearly shows his discharge was not based in whole or in part on drugs and that the proceeding was not based on evidence of any drug obtained from or as a result of a drug inspection;

	b.  that his 246 separation code is inequitable and arbitrarily used and does not give proper notice of the reason for his discharge as it is vague, the evidence of record confirms that the applicant’s SPD code was assigned based on the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The SPD code associated with this type of discharge at the time was 246.  Therefore, the applicant received the appropriate SPD code associated with his discharge;

	c.  that he was young at the time and had emotional problems related to acculturation conflicts which he developed when he arrived abroad and that he suffered from adjustment disorder which was neither addressed nor treated by military medical personnel, the evidence of record shows that the applicant was 19 years of age at the time of enlistment and nearly 21 years of age when he went AWOL.  There is no evidence that the applicant's commission of the charged offenses was a result of his age.  Additionally, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully served overseas and/or completed military service;

	d.  that the Army did not address his substance abuse/dependency problem which impaired his ability to serve, the evidence of record shows that the applicant was referred to the Schweinfurt Community Drug Rehabilitation Program after discharge from the hospital; however, he expressed no desire to stop taking drugs in the future;

	e.  that he was treated unfairly by officers who referred to him as unprofessional and insubordinate because he would not shave his beard, contrary to his contention, his chain of command showed maximum support to his rash issue as evidenced by the multiple physical profiles he was issued throughout his military service.  There is no evidence that he was picked on or treated unfairly or unprofessionally; and

	f.  that his expression of his disapproval of the war caused his commanding officer to treat him unfairly due to his opinion, there is no evidence in his record and he did not provide any evidence that shows his expression of disapproval of the Vietnam War led to his discharge.

4.  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)                                         AR20090001901



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ABCMR Record of Proceedings (cont)                                         AR20090001901



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