IN THE CASE OF:	  

		BOARD DATE:	    16 September 2010

		DOCKET NUMBER:  AR20100008829 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states that due to two operations and addiction to pain medication he is now drug free and living the Alcoholics and Narcotics Anonymous (AA/NA) steps.  He's a new person in Jesus.  He states he is sick, disabled, and suffers from high blood pressure, diabetes, hernias, and has a pinched nerve in his neck with numbness in his right hand.  He needs an upgrade of his discharge to get medical care.

3.  The applicant provides the following three certificates:

	a.  a certificate showing he completed "A COUNTRY CALLED HEAVEN" on 11 August 2009;

	b.  a certificate showing he participated in "THE BLUE WATERS SUBSTANCE ABUSE PROGRAM" on 27 November 2009 at the Richwood Correctional Center; and

   c.  a certificate showing he participated in the "NEW BEGINNING AA/NA GROUP" on 18 December 2009 at the Richwood Correctional Center.


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 15 June 1976 for a 3-year period.  He completed his initial entry training and he was awarded military occupational specialty 11B (Infantryman).  On 27 January 1977, he was assigned to Company A, 1st Battalion, 48th Infantry, 3rd Armored Division and stationed in the Federal Republic of Germany.

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

* being absent without leave (AWOL) from 6 September to 8 September 1976
* negligently failing to clean his military weapon on two occasions after unit weapons firing
* failing to obey a lawful order from a commissioned officer
* with intent to deceive, making a false official statement to a superior noncommissioned officer

4.  Court-martial charges were preferred against the applicant for communicating a threat to kill, wrongfully possessing .07 grams of heroin, and violating a lawful general order by possessing six tablets or more of the drug methaqualone and a switchblade.

5.  The applicant was medically evaluated on 17 February 1978 and found qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  During a mental status evaluation, he was found to be mentally responsible, able to distinguish right


from wrong with the ability to adhere to the right, and that he met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

6.  The applicant, after consulting with legal counsel, signed a voluntary request for discharge under the provisions 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, he acknowledged that he may be discharged under other than honorable conditions, 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, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

7.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of an under other than honorable conditions discharge.

8.  The applicant was discharged accordingly on 13 March 1978.  The DD Form 214 (Report of Separation from Active Duty) issued at the time confirms he completed 1 year, 8 months, and 27 days of total active service with 2 days of lost time due to AWOL.  His service was characterized as under other than honorable conditions.

9.  The Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge on 10 August 1983.  That board determined the applicant's discharge was both proper and equitable and unanimously voted not to change it.

10.  References:

	a.  The Manual for Courts-Martial (MCM) Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) and total forfeiture of all pay and allowances is authorized for:

* communicating a threat to kill with confinement for 3 years
* wrongfully possessing heroin with confinement for 5 years
* violating a general order or regulation with confinement for 2 years 


	b.  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.

	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 his discharge should be upgraded so he can get medical care because he is now drug free and living the AA/NA steps after completing alcohol and substance abuse rehabilitation programs in 2009.

2.  The applicant's disciplinary history shows multiple violations of the UCMJ resulting in court-martial charges being brought against him that could have resulted in a dishonorable or a bad conduct discharge, confinement, and forfeiture of all pay and allowances.

3.  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 known 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.  The ABCMR does not upgrade properly issued discharges for the purpose of allowing former Soldier's benefits or entitlements from other Government agencies.


6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100008829



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ABCMR Record of Proceedings (cont)                                         AR20100008829



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