IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010904 


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 to a general discharge.

2.  The applicant states he believed he would receive a general discharge.  Instead, he received an undesirable discharge.  Until his Department of Veterans Affairs (VA) counselor told him, he did not know he could request an upgrade.  He contends that he had become involved in drugs which were very prevalent in his unit.  He was sent to the Sunshine House for rehabilitation.  The specialist who interviewed him offered him a "joint."  He states he was "set up" by another Soldier who was angry at him.  The applicant was messed up on drugs and he was very scared about the court-martial charges.  Another Soldier told him he could request a discharge because the war in Vietnam was winding down and troops were being released.  He understood his discharge would be a general discharge.  The applicant is currently homeless.

3.  The applicant provided no additional documentation 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.  On 30 November 1971, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty (MOS) 11E (Armor Crewman).  He was subsequently assigned for duty at Fort Riley, KS.

3.  The applicant's assignment history shows:

	a.  1st Administration Company:  22 February - 4 May 1972;

	b.  A Troop, 1st Squadron, 4th Cavalry:  5 May 72 - 2 January 1973; and

	c.  A Company, 1st Engineer Battalion:  3 January - 31 July 1973.

4.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) indicates that he was absent without leave (AWOL) from 31 August through 6 September 1972.

5.  The applicant twice accepted nonjudicial punishment:

	a.  on 13 February 1973 for failing to go at the time prescribed to his appointed place of duty (three offenses) and for disobeying a lawful order (two offenses); and

	b.  on 4 April 1973 for unlawfully carrying a concealed switchblade knife.

6.  There are no court-martial charges in the available records.  However, there is a statement, signed by a lieutenant, which appears to have been written in connection with the applicant's request for discharge.  The lieutenant stated that the applicant's court-martial charges stemmed from an incident on 19 April 1973. The applicant had been suspected of having drugs in his possession and he was searched by the company commander.  Another Soldier had told the commander where the applicant had hidden his drugs.  The charges against the applicant 


were for possession of eleven capsules containing phencyclidine and for communicating a threat towards another Soldier with intent to terrorize.

7.  On 18 May 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, 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 - Enlisted Personnel), chapter 10.

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an Undesirable Discharge Certificate which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

9.  On 16 July 1973, the separation authority approved the applicant’s request for discharge and directed issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 31 July 1973, the applicant was discharged accordingly.  He had completed a total of 1 year, 7 months, and 24 days of creditable active service with 7 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) 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 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.  At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

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

   a.  possession of phencyclidine is a dishonorable discharge and 5 years confinement; and
   
	b.  communicating a threat towards another Soldier is a dishonorable discharge and 3 years confinement.

13.  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 a general discharge because he was "set up."  He also believed that his discharge was to have been a general discharge.

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 therefore were appropriate considering all the facts of the case.

3.  There is no evidence of record indicating the applicant had been "set up" or that he was told he would receive a general discharge.

4.  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 time lost rendered his service unsatisfactory.

5.  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)                                         AR20100010904



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ABCMR Record of Proceedings (cont)                                         AR20100010904



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