BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090010827 


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 that his undesirable discharge be upgraded.

2.  The applicant states that 27 caps of heroin were found in his clothes and that this was the only time in his life that he was on drugs.  He also states that he was taking a shower at the time and he could not prove that it was not his.

3.  The applicant provides no additional evidence 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 military personnel records show he enlisted in the Regular Army on 26 February 1970 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76A (Supplyman).

3.  On 28 May 1971, the applicant was assigned to the 525th Quartermaster Company in the Republic of Vietnam.

4.  On 20 December 1971, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failure to go at the time prescribed to his appointed place of duty.

5.  On 29 January 1972, the applicant pled not guilty, but was found guilty by a summary court-martial of failure to go at the time prescribed to his appointed place of duty.

6.  On 6 March 1972, the applicant was given a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in administrative proceedings.

7.  A DA Form 2800 (CID [U.S. Army Criminal Investigation Command] Report of Investigation), dated 7 April 1972, shows that an investigation revealed that on or about 10 March 1972 the applicant was in possession of 2.08 grams and trace amounts of heroin.

8.  On 2 May 1972, the 264th Transportation Company, 5th Transportation Command preferred court-martial charges against the applicant for wrongful possession of 26 vials, more or less of a habit-forming narcotic drug, to wit: heroin; being absent without leave (AWOL) from on or about 24 March to 
27 March 1972; and being AWOL from on or about 4 April 1972 to 30 April 1972.

9.  On 5 May 1972, the applicant signed his request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that 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 (VA), and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He also acknowledged he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or honorable discharge because the likelihood of that ever occurring was extremely rare.  The applicant did not submit any statements in his own behalf.

10.  On 9 May 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be furnished an Undesirable Discharge Certificate.

11.  On 26 May 1972, the applicant returned to Fort Rucker, AL and on 12 June 1972, the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service.  He  had completed 2 years, 1 month, and 21 days of active service that was characterized as under conditions other than honorable.  He had 57 days of time lost.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 2 February 1986, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.  

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  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.  

15.  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 his discharge should be upgraded because he had only been on drugs that one time.

2.  The applicant voluntarily requested a discharge after being charged with wrongful possession of 26 vials, more or less, of a habit-forming narcotic drug, to wit: heroin; and being AWOL from on or about 24 March to 27 March 1972 and from on or about 4 April to on or about 30 April 1972.  Prior to these charges he had accepted NJP once and had been convicted by a summary court-martial.  Such a record certainly warranted an undesirable discharge.

3.  The applicant acknowledged that he may be discharged under other than honorable conditions, and that he would be furnished an Undesirable Discharge Certificate.  He also acknowledged that he may be ineligible for many or all veteran's benefits.

4.  The applicant’s voluntary 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 administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

6.  The ABCMR does not upgrade discharges based solely on the passage of time.  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.

7.  In view of the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable or a 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)                                         AR20090010827



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010827



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1