IN THE CASE OF:   	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100012682 


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 general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

* he was using drugs at time of discharge
* he is currently in a Department of Veterans Affairs (VA) drug rehabilitation program
* he has been clean for 5 months

3.  The applicant provided a progress note from the VA Medical 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's record shows he enlisted in the Regular Army on 10 January 1973.  He completed basic combat and advanced individual training for motor transport operator.  The highest rank he attained while serving on active duty was private first class/E-2.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

	a.  on 14 August 1973, for failure to go at the time prescribed to his appointed place of duty from 27 July 1973 through 13 August 1973 (16 days) and

	b.  on 8 February 1974, for possession of a controlled substance.

4.  After the applicant was entered into the Army's drug rehabilitation program, he was found in possession of marijuana on two separate occasions.

5.  Records show that on 25 March 1974 the applicant was considered a rehabilitation failure and was dropped from the Army's rehabilitation program.  The applicant was recommended for discharge under the provisions of Army Regulations 635-200 (Personnel Separations), chapter 13, for unfitness – drug abuse.

6.  Records show the applicant was notified on 4 April 1974 by his unit commander of the intent to discharge him pursuant to paragraph 13-12 of Army Regulation 635-200 and was advised of his rights.

7.  Records show the applicant acknowledged receipt of the notice of discharge on 5 April 1974, was provided counsel, elected to waive case review before a board of officers, and provided his signature indicating understanding of the pending discharge.  On 16 April 1974, the unit commander recommended discharge.

8.  On 14 May 1974, the separation authority approved the recommendation for discharge and directed that the applicant receive a general under honorable conditions discharge.  On 17 May 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 1 year, 3 months, and 22 days of creditable active service.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unfitness whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

10.  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 or otherwise so meritorious than any characterization would be clearly in appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200.

3.  Although the applicant confirmed current abstention of illicit drugs, his record of service over 30 years ago shows a disciplinary history which included his acceptance of Article 15, UCMJ, on two separate occasions.  Further, the applicant failed U.S. Army rehabilitation treatment.

4.  Based on his identification as a drug rehabilitation failure and his record of indiscipline, the applicant's service clearly does not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable 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)                                         AR20100012682



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012682



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1