IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100020557 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was told he would be discharged with a general or honorable discharge.  He states in November 1979 the Giles v. Secretary of the Army decision ruled that discharges before 1975 based on completed urinalysis testing for the purpose of identifying drug users was not legal.  The ruling stated that it could force discharge but not use this information for character of discharge.  

3.  The applicant provides AETF Form 133 (Request for Discharge).

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 the Regular Army on 1 October 1971 for a period 
of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty of 11B (Light Weapons Infantryman).

3.  On 13 April 1972, he was assigned to Headquarters and Headquarters Battery, 6th Battalion, 40th Artillery in Germany.  

4.  On 21 June 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful possession of marijuana in hashish form.

5.  On 10 January 1974, court-martial charges were preferred against him for wrongful possession of one tenth of a gram of heroin.

6.  On 28 January 1974, he received a mental status evaluation from a captain of the Medical Corps.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

7.  The applicant's request for discharge in lieu of court-martial was not available for review.

8.  AETF Form 133 shows a review of the applicant's request for discharge by the Staff Judge Advocate (a lieutenant colonel).  The lieutenant colonel stated the applicant's battery, battalion and brigade commanders recommended approval of the request and the issuance of an undesirable discharge.  The lieutenant colonel recommended approval of the request and the issuance of General Discharge Certificate.

9.  The Acting Staff Judge Advocate, 3rd Armored Division stated the applicant's discharge was based in whole or in part on drugs.  He stated the applicant was identified as a drug abuser due to illegal possession, based on probable cause seizure.

10.  On 20 March 1974, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate.


11.  On 1 April 1974, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service with an undesirable discharge.  He had completed 2 years, 6 months, and 1 day of creditable active service that was characterized as under other than honorable conditions.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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.

14.  Army Regulation 635-200 states 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 is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-200 states 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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
17.  The Giles Decision:  Under this court-imposed program initiated in November 1979, an honorable discharge was mandated where the results of a compelled urinalysis given in connection with a drug treatment program were introduced by the government in the discharge process.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to an honorable discharge.  He contends that under the provisions of the Giles Decision his drug use could not be used in the characterization of his discharge.

2.  The provisions of the Giles Decision refers to drug usage.  The applicant accepted NJP on 21 June 1973 for wrongful possession of marijuana.  The court-martial charges that were preferred against him were for wrongful possession of one tenth of a gram of heroin.  Therefore, the provisions of the Giles Decision do not apply to the applicant because he was never convicted or charged with drug usage.

3.  The applicant's request for discharge was not available for review.  However, he would have had to voluntarily requested discharge, admitted guilt to the offense for which he was charged, and acknowledged he understood he could receive an undesirable discharge.  

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering his overall record of service.  

5.  The applicant received NJP for drug possession and additional charges had been referred against him for drug possession, all while assigned in a foreign country.  Therefore, his service is considered unsatisfactory.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general discharge or 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)                                         AR20100020557





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ABCMR Record of Proceedings (cont)                                         AR20100020557



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