IN THE CASE OF:	

		BOARD DATE:	      22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008453 


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. 

2.  The applicant states, in effect, that he got addicted to drugs while he was in Germany and he believes this was the beginning of his problems with the Army.  He also states the Army did not help him with his addiction problems they just kicked him out.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he enlisted in the Regular Army on 29 October 1971.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) for being absent without leave (AWOL) from his organization from 22 May to 25 May 1972. 

5.  The applicant's record contains DA Form 3545 (Deserter Wanted by the Armed Forces), dated 2 October 1972, which shows the applicant went into an AWOL status on 3 September 1972 and he was dropped from the rolls of the Army on 2 October 1972.

6.  The applicant's record contains a DA Form 3836 (Notice of Return of US Member from Unauthorized Absence) which shows the applicant was returned to military control on 24 January 1973.

7.  The applicant's record contains a memorandum from a Brigadier General, US Army Training Center (Engineer), Fort Leonard Wood, MO, dated 3 March 1973, which shows the applicant's request for discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200 was approved on this date.  The general also directed that the applicant be reduced to the lowest enlisted grade and separated with an undesirable discharge.

8.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the evidence does include a properly constituted DD Form 214 that was issued, on 8 March 1973, which was authenticated by the applicant and contains the authority and reason for discharge.  The DD Form 214 shows the applicant was separated under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial with an undesirable discharge.  The DD Form 214 shows he completed a total of 11 months and 16 days of creditable active military service and he had 146 days of lost time due to being AWOL.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. 

11.  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.

12.  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’s contentions were carefully considered and found to be without merit.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.  The applicant also authenticated the discharge with his signature.

3.  The evidence of record shows the applicant was separated with an undesirable discharge and he had 146 days of lost time due to being AWOL. Therefore, his service does not warrant an upgrade of his undesirable discharge to either a general or an honorable discharge. 

4.  There is also no evidence in the applicant’s record and the applicant did not provide any evidence to show he had an addiction problem while on active duty. Nor is there any evidence available that shows he sought help from his chain of command or medical officials for his addiction.  

5.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that the actions taken by the military were proper.  The applicant has presented nothing to overcome this presumption.

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)                                         AR20090008453



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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