IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009236 


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 a general discharge.

2.  The applicant essentially states that the Army did not handle his affairs or health problems in a positive manner, and that he was given menial tasks which added to his depression.  He also contends that there were no programs in place to help him with his substance abuse problems, and that no command authority intervened except to discipline him.  He further claims that the Army failed him insomuch as they did nothing to help him with his struggles.  Additionally, he contends that his mental health was not good, and that the Army knew that, but did nothing except give him an undesirable discharge.   

3.  The applicant provides a self-authored letter, dated 2 November 2008, which was addressed to the Department of Veterans Affairs; a letter, dated 5 May 2009, from a transportation company he worked for from 23 February 1990 to 2 March 1992; an undated and unsigned third-party letter; and a printout, dated 27 May 2008, from the Department of Veterans Affairs 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 military records show that he enlisted in the Regular Army on 1 December 1970.  He completed basic and advanced individual training and was awarded military occupational specialty 76R (Missile Repair Parts Specialist).  After serving a brief permanent duty assignment at Fort Bliss, Texas, he served a tour in Korea from 14 October 1971 to 13 October 1972, then returned to Fort Bliss, Texas.   

3.  On 9 July 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on or about 26 June 1973 and for absenting himself without authority from his appointed place of duty on or about 27 June 1973.  His punishment consisted of a suspended reduction in rank and pay grade from specialist four/E-4 to private first class (PFC)/E-3, which was later vacated and duly executed, a forfeiture of $80.00, and extra duty for 14 days.

4.  On 12 November 1973, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his unit on or about 21 August 1973, and remaining so absent until on or about 23 August 1973.  His punishment consisted of a reduction in rank and pay grade from PFC/E-3 to private/E-2 and a forfeiture of $80.00.

5.  Information in the applicant's military records shows that on 7 December 1973, the applicant was tried by a special court-martial and found guilty of going absent without leave (AWOL) from on or about 20 October 1973 to 5 November 1974.  The military judge postponed sentencing him until 8 January 1974, hoping that the applicant would straighten up and thus receive a less severe sentence.  However, on 2 January 1974, he again departed AWOL and was immediately dropped from the rolls of the Army and was classified a deserter.  On 1 February 1974, he was sentenced, in absentia, to a forfeiture of $200.00 pay for 3 months, to be confined at hard labor for 30 days, and to be reduced in rank and pay grade from private/E-2 to private/E-1.  The applicant returned to military control on or about 4 February 1974 and he was assigned to the U.S. Army Personnel Control Facility at Fort Ord, California.  His court-martial sentence was approved on 
27 February 1974.

6.  On 6 February 1974, the applicant was informed that charges were preferred against him for absenting himself without authority from his unit on or about 
2 January 1974, and remaining so absent until on or about 4 February 1974; an offense punishable under the UCMJ with a punitive discharge.  

7.  Additionally, on 6 February 1974, a Judge Advocate General's Corps lawyer informed the applicant that he was pending trial by court-martial and, if convicted, the Manual for Courts-Martial authorized as a part of the punishment for his offense the issuance of a bad conduct or dishonorable discharge.  This lawyer was informed that the applicant desired to submit a request for discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  This lawyer also essentially indicated that before he permitted the applicant to make his request, he wanted to explain to the applicant the provisions of chapter 10, advise him as to the probable nature and effects of a discharge under this regulation, and advise him of certain rights that he had and could exercise.  

8.  This lawyer wanted to make it clear to the applicant that the Army was not trying to separate him at that point, and that if he did request discharge for the good of the service, it must be his voluntary choice, and that no person could make, force, or coerce him to ask for this discharge.  This lawyer also warned the applicant against widespread rumors that an undesirable discharge could easily be changed to an honorable discharge after his release, or that after a certain amount of time it would automatically become honorable, and that these rumors were totally false.  This lawyer also advised the applicant about the Army Discharge Review Board (ADRB) and the ABCMR, and cautioned him that in 1969, the ABCMR only changed 2.8 percent of the discharges it reviewed, and that statistics were furnished to the applicant so that he would know that if he was issued an undesirable discharge in all likelihood that discharge would remain with him for the rest of his life.

9.  On 12 February 1974, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 and acknowledged that he was not subjected to coercion with respect to his request for discharge.  In his request for discharge, the applicant also acknowledged that he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf.

10.  In his statement, the applicant essentially stated that he was requesting discharge for the good of the service because he had been AWOL for drug abuse and found it easier for him to use drugs.  He also claimed that the personnel at Fort Bliss did not care at all about his drug use, and that he found it easier for him to get the drugs on his own without the Army's help.  He also stated that as a result, he had been in the hospital three times for hepatitis and three different times for drug abuse rehabilitation.  He further contended that he just wanted out of the Army, and understood that he would lose his benefits. 

11.  On 26 March 1974, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  Although he also directed that the applicant be reduced to the lowest enlisted grade, he was already serving in the rank and pay grade of private/E-1.  On 1 April 1974, the applicant was discharged accordingly.  

12.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant's military records contained a DA Form 3349 (Medical Condition - Physical Profile Record), dated 8 November 1973, which essentially shows in part he was diagnosed with adjustment problems which required transitional support through the Alcohol and Drug Abuse Rehabilitation Program.  This document also shows that the applicant was only to be reassigned to a continental United States post with an established drug rehabilitation program, and that he had been identified as a user of drugs.  

14.  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, the 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.

15.  Army Regulation 635-200, paragraph 7a provides, in pertinent part, 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.

16.  Army Regulation 635-200, paragraph 3-7b also provides, in pertinent part, 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 that his undesirable discharge should be upgraded to a general discharge.

2.  The applicant's contention that the Army did not handle his affairs or health problems properly and that there were no programs in place to help him with his substance abuse problems was noted; however, he was issued a physical profile in part for his drug abuse, and the Army placed assignment restrictions on him to ensure that proper support would be available for him for his substance abuse.  

3.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  Based on the applicant's record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general 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.




      _______ _   __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)                                         AR20090009236



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009236



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1