IN THE CASE OF:	

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090018977 


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 that his condition at the time of his discharge was due to alcoholism and drug addiction.  Since his discharge these conditions have been accepted as medical diseases.  If his diseases had been treated, he would not have received such a bad discharge and would not have lived the last 38 years in shame.  He volunteered to serve in the Army to stand up for our great country, but his behavior was predestined by both of his parents also being diseased.  He wrote a letter to his Congressman at the time, but his sergeant would not forward it.  That letter expressed his hopelessness.  He was 18 years of age and crying for help.  He was not one who dodged his obligation.  He was not a conscientious objector who later received amnesty.  Instead, he received shame and humiliation from a disease he could not control.  He feels that shame even as he writes this request.  He truly has suffered enough and is presently in remission.  His discharge makes him ineligible to receive Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides copies of his certificate for completing an inpatient residential treatment program and an employment assessment form.

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.  On 20 January 1970, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 67Y (Helicopter Repairman).  He was subsequently assigned for duty at Fort Hood, Texas.

3.  On 24 July 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave for 2 days.  The punishment included a forfeiture of $36.00 pay per month for 1 month and 14 days of restriction and extra duty.

4.  On 2 October 1970, the applicant accepted NJP for failure to go to formation.  The punishment included reduction to pay grade E-2, a forfeiture of $32.00 pay per month for 1 month, and 14 days of restriction and extra duty.

5.  On 18 November 1970, charges were preferred under the UCMJ for violation of:

	a.  Article 86, two specifications for failure to go to formation;

	b.  Article 86, one specification for AWOL of 21 days; and

	c.  Article 91, one specification for being disrespectful in language towards a noncommissioned officer.
   
6.  On 19 November 1970, the applicant consulted with legal counsel and 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 under other than honorable conditions 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 Army Regulation 635-200 (Personnel Separations), chapter 10.

7.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 20 November 1970, the applicant accepted NJP for failure to go to formation.  The punishment included a forfeiture of $25.00 pay per month for 1 month and 14 days of extra duty.

9.  On 16 December 1970, the separation authority approved the applicant's request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  On 29 December 1970, the applicant was discharged accordingly.  He had completed a total of 10 months and 17 days of creditable active military service and had accrued 23 days of lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Under the UCMJ, the maximum punishment allowed for violation of:

	a.  Article 86 for AWOL of more than 3 days but less than 30 days is a forfeiture and 6 months of confinement and

	b.  Article 91 for being disrespectful in language towards a noncommissioned officer is a forfeiture and 3 months of confinement.

13.  The UCMJ also provides that if an accused is found guilty of two or more offenses for none of which a dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowances.

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 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 that his undesirable discharge should be upgraded to honorable due to his disease of alcoholism and drug addiction.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  Notwithstanding the applicant's assertion that he was addicted to drugs and alcohol, there is no available evidence showing he had such a problem or that this necessarily mitigated his misconduct.

4.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of his discharge.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090018977



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ABCMR Record of Proceedings (cont)                                         AR20090018977



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