DOCKET NUMBER:  AR20090003784 


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 to a general under honorable conditions discharge.

2.  The applicant states, in effect, he had a drug problem, was never offered rehabilitation for his drug problem, and was led to believe that he might get a general discharge.  He also states that he had no prior disciplinary record, he was within 30 days of separation, and was told he would have to spend 60 to 90 days in confinement if he demanded trial by court-martial.

3.  The applicant provides copies of his request for discharge for the good of the service, dated 29 January 1973; Office of the Staff Judge Advocate (SJA), 3rd Armored Division, Germany, memorandum for record, undated, subject:  Request for Discharge for the Good of the Service [Applicant’s Rank, Name, and Social Security Number]; and AETF Form 133 (Request for Discharge Under the Provisions of Chapter 10, Army Regulation 635-200), dated 1 February 1973.

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 show he was inducted into the Army of the United States for a period of 2 years and entered active duty on 19 February 1971.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 64C (Heavy Vehicle Driver).  The applicant was assigned overseas and served in U.S. Army Europe (USAREUR) in Germany from 10 July 1971 through 8 February 1973.

3.  The applicant's military personnel records contain a copy of Headquarters, 3rd Armored Division, Germany, letter, dated 12 July 1971, subject:  Statement of Orientation on Hazards of Drug Abuse.  This document shows the applicant certified with his signature that he received initial orientation/refresher training on the hazards of drug abuse to include that the illegal possession and use of drugs are punishable under the Uniform Code of Military Justice (UCMJ).

4.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 14 December 1972, that shows the commander, Company B, 503rd Supply and Transport Battalion, 3rd Armored Division (Support), Germany, preferred charges against the applicant in that he did wrongfully have in his possession 0.03 grams, more or less, of a habit forming narcotic drug, to wit:  heroin, at Edwards Kaserne, Frankfurt, Federal Republic of Germany, on or about 2 November 1972.

5.  The applicant's military personnel records contain a copy of an AETF Form 159, Company B, 503rd Supply and Transport Battalion, 3rd Armored Division, Germany, initiated 14 December 1972, with four command endorsements that show, in pertinent part, on 12 January 1973 the commander, 3rd Armored Division Support Command, 3rd Armored Division, Germany, directed the applicant’s trial by special court-martial.

6.  On 29 January 1973, 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 states he had not been subject to coercion with respect to his request for discharge.  The applicant’s request also states 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 [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.

7.  The applicant’s military personnel records contain a copy of an Office of the SJA, 3rd Armored Division, Germany, memorandum for record, undated, subject:  Request for Discharge for the Good of the Service [Applicant’s Rank, Name, and Social Security Number].  This document shows that Lieutenant Colonel T____, SJA, certified the following:

	a.  On 23 January 1973, the commander, Company B, 503rd Supply and Transport Battalion, 3rd Armored Division, Germany, telephonically recommended approval of the basic request and that an Undesirable Discharge by issued.

	b.  On 26 January 1973, the commander, 503rd Supply and Transport Battalion, 3rd Armored Division, Germany, telephonically recommended approval of the basic request and that an Undesirable Discharge by issued.

	c.  On 29 January 1973, the commander, Division Support Command, 3rd Armored Division, Germany, telephonically recommended approval of the basic request and that an Undesirable Discharge by issued.

8.  The applicant’s military personnel records contain a copy of an AETF Form 133, dated 1 February 1973, that shows the SJA, 3rd Armored Division, Germany, forwarded the applicant’s request for discharge to the commanding general, 3rd Armored Division, Germany, for decision.  The SJA confirmed that the applicant had a pending charge of Article 134, UCMJ, for possession of heroin.  The SJA advised the commanding general that the applicant’s unit commander stated the applicant should be eliminated from the service, his service has been fair, and there seems little chance for rehabilitation.  He also advised the commanding general that the applicant’s company commander, battalion commander, and brigade commander recommended approval of the applicant’s discharge and issuance of an Undesirable Discharge Certificate.  The SJA added, in his opinion, the applicant’s prior record and his present offense warranted a discharge from the Army.

9.  On 1 February 1973, the commander, 3rd Armored Division, Germany, 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, with an Undesirable Discharge Certificate.  The commanding general also directed the applicant be reduced to the grade of private (E-1).  Accordingly, the applicant was discharged on 12 February 1973.

10.  The applicant's military personnel records contain his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was inducted into the Army of the United States on 19 February 1971 and he was discharged on 12 February 1973 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service 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 1 year, 11 months, and 24 days of net active service this period and 1 year and 7 months of foreign service.

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

12.  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.

13.  Army Regulation 635-200, in effect at the time, set 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.  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.  The Manual for Courts-Martial, in effect at the time, provided for a maximum punishment of a punitive discharge for wrongful use, possession, etc., of controlled substances.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded because he had a drug problem, he was never offered rehabilitation for his drug problem, and was led to believe that he might get a general discharge.  He also contends that he had no prior disciplinary record, he was within 30 days of separation, and was told he would have to spend 60 to 90 days in confinement if he demanded trial by court-martial.

2.  The applicant’s contention that he was never offered rehabilitation for his drug problem was carefully considered.  The evidence of record shows that within 2 days of his arrival in USAREUR, the applicant received information on the hazards of drug abuse, to include, that illegal possession and use of drugs are punishable under the UCMJ.  The evidence of record also shows the applicant was charged with "wrongfully having in his possession 0.03 grams, more or less, of a habit-forming narcotic drug, to wit:  heroin."  While there is no evidence of record that shows the applicant was offered rehabilitation, there is also no evidence that shows the applicant had a drug problem.  In this regard, the evidence of record shows that in considering the applicant’s request for discharge nearly 3 months after the applicant’s offense for wrongful possession of heroin, his unit commander commented that "there seems little chance for rehabilitation."

3.  The applicant’s contention that he was told he would have to spend 60 to 90 days in confinement if he demanded trial by court-martial was considered. The evidence of record shows the applicant submitted a request for the good of the service based on a charge that he had committed an offense, the punishment for which included a bad conduct or dishonorable discharge.  Thus, it is reasonable to conclude that the applicant would have spent 60 to 90 days in confinement pending trial by court-martial had he not submitted a request for discharge for the good of the service.  However, this fact does not invalidate the applicant’s voluntary request for discharge for the good of the service.

4.  The applicant’s contention that he was led to believe that he might get a general discharge was carefully considered; however, the applicant provides no evidence in support of his claim.  In fact, the evidence of record shows that in his request for discharge for the good of the service, the applicant acknowledged that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

5.  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.  Therefore, in view of all of the foregoing, the reason and type of discharge directed were appropriate considering all of the facts of the case.

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)                                         AR20090003784



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ABCMR Record of Proceedings (cont)                                         AR20090003784



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