IN THE CASE OF:	   

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100014780


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, in effect, that he was 17 years old at the time of his service with responsibility for a Class VI [U.S. Forces ration card distributed to Soldiers assigned to U.S. Army, Europe (USAREUR)] ration card.  He states that he was not given an opportunity for rehabilitation and left the Army a heroin addict.  The applicant concludes that he was given no help; the Army just kicked him out.

3.  The applicant provided a copy of his DD Form 214 (Report of Separation from Active Duty).

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 November 1975.  Records show he completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 16P (Chaparral Crewman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E2.

3.  On 26 February 1976, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order (consumption of alcohol while in a training status) on 24 February 1976.  

4.  On 16 August 1976, the applicant was barred from reenlistment.

5.  The applicant's discharge packet is not available for review.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was administratively discharged on 10 September 1976, under the provisions of Army Regulation
635-200, chapter 10, conduct triable by court-martial, and issued an undesirable discharge.  The applicant completed 10 months and 1 day of total active service.

6.  Records show the applicant was enrolled in and completed the requirements of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

7.  There is no evidence in the available records, or any evidence provided by the applicant, that indicates he misused his issued Class VI ration card while assigned to USAREUR.  

8.  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.

9.  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 Veterans Administration 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.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for discharge upgrade was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's contention that he was not given an opportunity for rehabilitation, but was instead kicked out of the Army as a heroin addict has been noted; however, records show the applicant completed the requirements for disenrollment from the ADAPCP program.

3.  Based on his record of indiscipline, including NJP and a bar to reenlistment, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Although the applicant's record is void of the facts and circumstances surrounding his discharge, it appears that he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.  Therefore, he is not entitled to a general discharge.

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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100014780



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