IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090021782 


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 upgrade of his undesirable discharge.

2.  The applicant states he wants his discharge changed so he can receive the benefits he deserves.  He states he had never heard of drugs until he served in country (Republic of Vietnam (RVN)) when he tried them shortly after his arrival.  To this day, he states he suffers from mental problems related to his drug use in the Army.

3.  The applicant did not provide any supporting evidence with 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 Regular Army on 10 June 1969 for a 3-year period.  He completed his initial entry training and he was awarded military occupational specialty 36C (Lineman).

3.  The applicant served in the RVN from 4 March 1970 to 3 March 1971 with his principal duty as a lineman in a signal company.

4.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for:

* drunk while posted to sentinel duty on the perimeter of Xaun Loc Compound, RVN
* violation of a lawful General regulation by being in Saigon, RVN on two separate occasions
* failing to go at the time prescribed to his appointed place of duty on
1 December 1970 
* being absent without leave (AWOL) on two separate occasions from 11 April 1971 to 17 May 1971 and from 24 May 1971 to 6 June 1971

5.  On an unknown date, court-martial charges were preferred against the applicant for being AWOL during the period 12 July 1971 to 18 October 1971.

6.  The applicant was medically evaluated on 26 October 1971 and found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  A medical doctor determined that there was no reasonable ground for belief that the applicant is or ever had been mentally defective, deranged, or abnormal concluding a psychiatric examination was not deemed appropriate.

7.  On 27 October 1971, the applicant signed his voluntary request for discharge under the provision of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would 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 expect to encounter substantial prejudice in civilian life because of an undesirable discharge.


8.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial on 9 November 1971 and directed issuance of an Undesirable Discharge Certificate.

9.  The applicant was discharged accordingly on 12 November 1971.  The 
DD Form 214 issued at the time confirms he completed a total of 1 year, 10 months, and 7 days of total active service with 210 days of lost time due to AWOL or confinement.  His service was characterized as under other than honorable conditions.

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

11.  References:

     a. The Manual for Courts-Martial (MCM) Table of Maximum Punishments sets forth the maximum punishments for offense chargeable under the UCMJ.  A punitive discharge (Dishonorable Discharge or Bad Conduct Discharge) is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months and a forfeiture of all pay and allowances.

     b.  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 would normally be furnished an individual who was discharged for the good of the Service.  

     c.  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 abuse of drugs while serving in the RVN contributed to his problems and discharge.

2.  The applicant's records are void of information concerning possible drug abuse or addiction and he did not provide evidence to show he used drugs, was a drug abuser, or that he received treatment for his drug use or addiction while on active duty.

3.  The applicant was charged with the commission of an offense punishable under the UCMJ for an extended AWOL period.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

4.  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.

5.  Therefore, there is no basis for warranting an upgrade of the applicant's undesirable 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)                                         AR20090021782



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021782



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1