BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018399 


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 an upgrade of his undesirable discharge (UD) to a general discharge (GD).

2.  The applicant states that he was a drug user and that he came from a broken and abusive home.  He is requesting an upgrade of his discharge so that he may be able to obtain medical care thorough the Department of Veterans Affairs. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a 2009 "Turning Point Program" certificate.

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 on 6 February 1969, he completed the training requirements, and was awarded military occupational specialty 94B (Cook).

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice as follows on:

	a.  24 April 1969, for being absent without leave (AWOL) from 13 through 23 April 1969 (11 days); and

	b.  10 July 1969, for missing bed check.

4.  On 9 September 1969, a summary court-martial found the applicant guilty of being AWOL from 23 through 27 August 1969 (5 days).

5.  The applicant went AWOL on 11 November 1969 and he returned to military control on 13 June 1972, a period of 2 years, 7 months, and 3 days (945) days.  Although not specified, there is an indication that this AWOL ended as a result of civilian apprehension.

6.  Court-martial charges were preferred; however, the command elected to process the applicant for an administrative separation under Army Regulation 635-206. 

7.  On 19 July 1972, the applicant acknowledged the separation action and waived his rights to a board of officer's review, to submit a statement on his own behalf, and to be represented by counsel.

8.  The discharge authority approved the separation action and directed that the applicant be discharged with a UD.  

9.  The applicant was discharged with a UD on 4 October 1972.  He had 1 year and 27 days of creditable service and 961 days of lost time.  [The notation of lost time on the applicant's DD Form 214 is incorrect, it does not include all three periods of AWOL.]  

10.  The available medical records do not show any complaints of, diagnosis of, or treatment for any illegal drug use.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct for absence without leave or desertion.  This regulation provides, in pertinent part, that a Soldier who had committed an AWOL offense of more than 1 year, could be separated administratively if they were afforded (or waived) a board of officers and the associated rights of that procedure even though the available evidence of the offense might prove insufficient to warrant conviction in a trial by court-martial.  An undesirable discharge was normally considered appropriate.  

12.  Army Regulation 635-200, Chapter 1 provides that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was a drug user and that he came from a broken and abusive home.  He is requesting an upgrade of his UD so that he may be able to obtain medical care thorough the Department of Veterans Affairs. 

2.  The applicant's background and his illegal drug use were considered.  However, in the absence of evidence that clearly show the applicant was so impaired by mental, emotional, psychological or psychiatric problems that he was unable to tell right from wrong and adhere to the right, these factors are not sufficiently mitigating for granting relief in his case. 

3.  The applicant has almost three times more lost time then he does creditable service time.  His service is further marred by two NJP's and a summary court-martial.  This does not demonstrate meritorious service sufficient to warrant a GD. 

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which the applicant was discharged.

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)                                         AR20090018399



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ABCMR Record of Proceedings (cont)                                         AR20090018399



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