IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011030 


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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was young and received no counseling or help with his drug problem.  He claims he quit taking drugs on his own and has been clean for over 30 years.

3.  The applicant provides no additional documentary 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 record shows that he enlisted in the Regular Army and he entered active duty on 9 October 1966.  He was trained in and awarded military occupational specialty (MOS) 36C (Lineman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was advanced to specialist four (SP4)/E-4 on 14 April 1969 and that this is the highest rank he attained while serving on active duty.

4.  On 31 July 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving post without authority.  His punishment for this offense was a forfeiture of $40.00 per month for 3 months and 20 days of restriction and extra duty.

5.  On 10 October 1967, a special court-martial (SPCM) found the applicant guilty of two specifications of violating Article 86 of the UCMJ by being absent without leave (AWOL) from 3 to 27 July 1967 and from 15 to 28 August 1967.  The resulting sentence was confinement at hard labor for 6 months (suspended), forfeiture of $64.00 per month for 6 months, and reduction to private/E-1.

6.  On 11 March 1968, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 23 January 1968 through 5 February 1968.  The resulting sentence was confinement at hard labor for 6 months and a forfeiture of $68.00 per month for 6 months.

7.  On 3 January 1970, DD Forms 458 (Charge Sheets) were prepared preferring court-martial charges against the applicant for violating Articles 85, 92, and 123 of the UCMJ as follows:  Article 85, by permanently absenting himself from his unit in Vietnam with the intent to stay away permanently on or about 20 November 1969 and remaining away in desertion until on or about 28 November 1969; Article 92 (six specifications), by violating lawful general regulations by (1) wrongfully possessing a ration card issued in another Soldier's name, (2) wrongfully possessing $3,000.00 in military pay certificates, (3) wrongfully purchasing a $200.00 money order without proper authority, (4) purchasing a $500.00 money order without proper authority, (5) wrongfully purchasing a $500.00 money order without proper authority, and (6) wrongfully requesting that another Soldier purchase $3,000.00 in money orders for him; and Article 123 (two specifications), by falsely signing the name of a captain to a letter order authorizing emergency leave and falsely signing the name of a captain to a commander's certificate.

8.  On 18 February 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, and the possible effects of a UD.  Subsequent to this legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged that by requesting discharge he was acknowledging that he was guilty of the offense charged or of a lesser offense included therein which also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that under no circumstances did he want further rehabilitation because he had no desire to perform further military service.  He also acknowledged that he understood he could receive a UD and as a result 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 laws.  He finally acknowledged he understood that he could face substantial prejudice in civilian life as a result of receiving a UD.

9.  The applicant's discharge request was approved and on 9 April 1970 he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial and received a UD.  It also shows that as of the date of his discharge he held the rank of PV1.  He completed 3 years and 4 days of creditable active military service and he accrued 177 days of time lost due to AWOL and confinement.

10.  On 21 March 1978, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable after carefully considering the applicant's military record and all available evidence and it voted to deny the applicant's request for an upgrade of his discharge.

11.  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 at any time after the charges have been preferred.  An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

12.  Paragraph 3-7a of the same regulation provides that an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that a GD 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 contention that his UD should be upgraded because he did not receive help for his drug problem while he was in the Army and he has been drug free for 30 years was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record also shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in receipt of a punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance.

4.  The applicant's record documents no acts of valor and reveals an extensive disciplinary history that includes his acceptance of NJP, two SPCM convictions, and his accrual of 177 days of time lost due to AWOL and confinement.  Therefore, it is clear his overall record of service was not sufficiently meritorious to support the issuance of a GD or an HD by the separation authority at the time of his discharge and does not support an upgrade to a GD or an HD at this time.

5.  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)                                         AR20090011030



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011030



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1