BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017673 


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 discharge characterized as under other than honorable conditions be upgraded.

2.  The applicant states that if he had been treated for drug abuse and alcoholism he would have stayed in the military.  He adds that he had a mental breakdown because he was a drug addict, his father had a stroke, and his wife left him. 

3.  The applicant does not provide any 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 record shows he originally enlisted in the Regular Army on 
19 July 1972 and was honorably discharged on 4 November 1974 for immediate reenlistment.  He reenlisted on 5 November 1974.

3.  On 11 September 1975, charges were preferred against the applicant for being absent without leave (AWOL) from 1 August 1975 to 11 August 1975 and from 19 August 1975 to 11 September 1975. 

4.  On 12 September 1975, the applicant signed his separation medical examination containing his statement of "I’m in good health." 

5.  On 17 September 1975, the applicant consulted with his counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10 of Army Regulation 635-200.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions.  The applicant elected not to provide a statement on his behalf.

7.  On 30 September 1975, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that a Undesirable Discharge Certificate be issued.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows that he was discharged under other than honorable conditions on 3 October 1975.  His service between 5 November 1974 to 3 October 1975 was unverified, but he had a total of 29 days of lost time due to AWOL.  His records also show he was credited with 2 years, 3 months and 14 days of active duty service from his previous DD Form 214.

9.  On 1 September 1977, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on 
29 May 1979 citing that the board determined he was properly and equitably discharged.



10.  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, 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.  At the time, an undesirable discharge was normally considered appropriate.

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 contends, in effect, that his drug and alcohol dependency influenced his behavior.  However, there is no evidence that indicates the applicant suffered from or received treatment for his drug and alcohol dependency during his military service or that his dependency was the cause of his indiscipline and subsequent separation.  Therefore, this contention is not supported by evidence of record.

2.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.

3.  Based on this 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 renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20090017673





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ABCMR Record of Proceedings (cont)                                         AR20090017673



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