IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021162 


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 his discharge under other than honorable conditions be upgraded.  

2.  The applicant states:

* He requested a discharge for the good of the service
* He has a disease now recognized as alcoholism and drug addiction and was facing a court-martial for a crime he committed to support that disease
* At the time in question alcoholism/drug addiction was not known to be or accepted as an illness
* When he confessed to his crime and drug addiction (cocaine) he requested treatment
* Treatment was not very well established or tested
* Counselors weren't very well trained 
* He served honorably for 10 years prior to his discharge
* He performed his duties with excellence
* Since his discharge he has received his physical therapy assistant license in Florida
* He raised two sons
* He is involved in the community
* He and his wife of 39 years continue to work daily on his addiction
* His discharge tarnishes his record   

3.  The applicant provides 27 attachments outlined in his personal statement 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 on 18 December 1969 for a period of 3 years.  He trained as a clerk typist and physical therapy specialist.  He remained on active duty through continuous reenlistments.  He attained the rank of staff sergeant on 8 June 1979.  On 29 June 1979, he reenlisted for a period of 3 years.    

3.  On 23 July 1982, charges were preferred against the applicant for larceny and making a false claim against the Government.  Trial by special court-martial was recommended. 

4.  On 19 August 1982, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* He requested a chapter 10 discharge for the good of the service
* It was not his initial intention to defraud the Army for money
* He intended to collect the funds and then replace it before it was discovered
* He began having financial problems a year earlier when his wife became pregnant and was forced to stop working due to complications
* He decided to commit the crime due to financial problems
* He regrets he was foolish enough to commit such stupid mistakes  

5.  The intermediate commanders recommended disapproval of the applicant's request.

6.  On 3 September 1982, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.  

7.  Accordingly, on 17 September 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had served a total of 11 years, 2 months, and 17 days of creditable active service with 29 days of lost time (14 January 1981 to 
15 January 1981, 4 May 1981 to 6 May 1981, 22 June 1981 to 9 July 1981, and 13 October 1981 to 18 October 1981).

8.  There is no evidence of record which shows the applicant was diagnosed with alcohol or drug abuse or dependency prior to his discharge.  

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

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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.  Although the applicant now contends he committed the crime to support his disease (alcoholism/drug addiction), the evidence of record shows at the time in question he indicated he committed the crime due to financial problems.  In addition, there is no evidence of record which shows he was diagnosed with alcohol/drug abuse or a dependency prior to his discharge.  

2.  The applicant's record of service during his last enlistment included 29 days of lost time and serious offenses for which special court-martial charges were preferred.  In addition, he was a staff sergeant.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090021162



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ABCMR Record of Proceedings (cont)                                         AR20090021162



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