IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012184 


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.

2.  The applicant states that he was asked to quit the Army for drug use after Vietnam.  He goes on to state that he was placed in the stockade for months without charges or a trial.  He also states that he acquired drug habits in Vietnam and was not offered a chance for rehabilitation.  He further states that he was young and impressionable and used drugs and alcohol because everyone else was doing it and he did it to fit in.  He also contends that not going along could have been more dangerous than the Viet Cong and could have gotten him killed.

3.  The applicant provides no additional documents 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 was born on 16 December 1950 and enlisted in the Regular Army in Los Angeles, California on 26 January 1970 for a period of 2 years.  He was transferred to Fort Ord, California to undergo his training.  On 18 April 1970, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a commissioned officer.

3.  He completed all of his training at Fort Ord and was transferred to Vietnam on 16 June 1970 for assignment as a light weapons infantryman with Company C, 1st Battalion, 61st Infantry Regiment.

4.  On 11 October 1970, NJP was imposed against him for disobeying a lawful order.

5.  On 5 February 1971, the applicant was rehabilitatively transferred to Company B, 11th Infantry regiment.

6.  On 25 March 1971, NJP was imposed against the applicant for being absent without leave (AWOL) from 13 March to 15 March 1971.

7.  He departed Vietnam on 6 May 1971 and was transferred to Fort Hood, Texas.  On 14 June 1971, while in the replacement company, NJP was imposed against him for failure to go to his place of duty. 

8.  On 13 August 1971, the applicant’s commander submitted a request for a mental hygiene consultation of the applicant.  He indicated that the applicant was pending discharge under the provisions of Army regulation 635-200, chapter 10, that the applicant was under charges for possession of heroin, that on numerous occasions he had been found in possession of drug paraphernalia, and that reliable sources reported that he was a habitual heroin user.

9.  The examining physician opined that the applicant was able to distinguish right from wrong, that he was able to adhere to the right, and that he had the mental capacity to participate in board proceedings.

10.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs (VA) in Los Angeles, California.  However, his records do contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial on 1 September 1971.  He had served 1 year, 7 months, and 3 days of total active service.  
11.  His records also show that he was advised at the time of his discharge of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, there is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  At that time, an undesirable discharge was normally considered appropriate.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  
3.  The applicant’s contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct, which began before he went to Vietnam, and overall undistinguished record of service.  His service simply does not rise to the level of a general discharge.

4.  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 this requirement.

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)                                         AR20100012184





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ABCMR Record of Proceedings (cont)                                         AR20100012184



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