IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090012928 


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 to honorable.  

2.  The applicant states, in effect, that when he returned from Vietnam he was young and recovering from heroin addiction.  He was treated for his addiction while he was in Vietnam.  However, his record no longer contains any evidence documenting this treatment.  He was assigned to a new company and told he was being assigned to Germany with no leave.  He states he was getting married, but no one seemed to care so he went absent without leave (AWOL).  He also states that he has been married for 36 years, that he has been clean and sober, and that he wants his discharge upgraded so he can have a clean record. He does not want any benefits. 

3.  The applicant does not provide any documents 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 enlisted in the Regular Army (RA) on 22 January 1970 for 3 years.  He enlisted at age 19, and he had completed high school.  He successfully completed basic and advanced individual training and was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).  The highest rank/grade he attained during his tenure of service was specialist (SPC)/E-4.

3.  The applicant was AWOL from 8 March to 15 March 1970.  There are no records to show the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for this violation of the UCMJ.

4.  The applicant served in Vietnam from 29 September 1970 to 22 September 1971 with his principal duty as a supply clerk.

5.  On 25 April 1972, the applicant departed AWOL.  On 6 June 1974, he surrendered to appropriate authorities at Fort Dix, NJ.  

6.  On 1 July 1974, the applicant underwent a separation physical.  The medical examination report shows his psychiatric evaluation was normal and he was qualified for separation under the provisions of Army Regulation 635-200, chapter 10.  A review of the available medical records do not show the applicant was evaluated or treated for substance abuse. 

7.  On 10 July 1974, court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ for being AWOL from on or about 25 April 1972 to 6 June 1974.  

8.  On an unknown date, 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, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).


9.  In his request for discharge, the applicant acknowledged he understood that if his request was approved 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 (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended the issuance of an undesirable discharge.

11.  On an unknown date in July 1974, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be given an undesirable discharge.  He also directed that the applicant be reduced to the lowest enlisted grade prior to discharge.

12.  Accordingly, on 22 July 1974, the applicant was discharged.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with an undesirable discharge.  This form further confirms that he completed 2 years, 4 months, and 2 days of creditable active service.  He had 752 days of lost time due to being AWOL and 37 days were lost subsequent to his expiration term of service date.   

13.  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.

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, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate was normally considered appropriate for individuals who were discharged for the good of the Service.  

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.   The applicant contends that his undesirable discharge should be upgraded to honorable; he was young, immature, and recovering from an addiction problem at the time of his offense. 

2.  The applicant was 19 years old when he enlisted in the RA, and 20 years old at the time of his first period of AWOL.  When he was returned to military control after the second period of AWOL and requested discharge for the good of the service in lieu of trial by court-martial, he was 23 years old. 

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, in lieu of trial by court-martial.  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 tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  While it is commendable that the applicant has been clean, sober and married for 36 years these facts alone are insufficient to warrant upgrading a properly issued discharge.

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 that requirement.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general, under honorable conditions 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)                                         AR20090012928



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ABCMR Record of Proceedings (cont)                                         AR20090012928



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