IN THE CASE OF:	  

		BOARD DATE:	 22 February 2011 

		DOCKET NUMBER:  AR20100020934 


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 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states he was only 20 years of age and he had a substance abuse problem that began while in Germany.  He went absent without leave (AWOL) for 197 days because he did not want to return to Germany and be in a substance abuse environment.  Further, he contends that from the date of his enlistment until April 1978 he had a clean record.  He received one Article 15 in April 1978 due to heroin use.

3.  The applicant provides a self-authored letter in support.

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 15 February 1977, the applicant enlisted in the Regular Army at the age of 19 years and 1 month.  He completed his initial training and he was awarded military occupational specialty 76D (Materiel Supplyman).

3.  The highest rank/grade he attained was private first class (PFC)/E-3.

4.  The records show he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 18 May 1978 for being disrespectful, uncooperative, and giving a false name to a noncommissioned officer when asked for identification.

5.  On 28 June 1978, the applicant was reported AWOL.

6.  On 11 January 1979, he surrendered and he was returned to military control at Fort Dix, NJ.  He indicates on his Personnel Control Facility Information Sheet than he did not want help with his problems and he wanted to be separated from the Army as soon as possible.  This document is authenticated with his signature.

7.  On 16 January 1979, after being advised of his rights, the applicant stated the reason he went AWOL was because he was sorry he enlisted from the time he reached basic combat training.  He put up with what he considered injustices and being told what to do all the time and went to Germany.  He returned to the United States on leave and decided not to return to Germany.  He was on drugs over there [Germany] and he did not want to return to that situation.  He further stated he surrendered because he was tired of looking over his shoulder.  He does not like the Army and only wants to get out.  It is noted on his Personnel Control Facility Interview Sheet that he used heroin.

8.  On 15 January 1979, charges were preferred against the applicant under the UCMJ for being AWOL from on or about 28 June 1978 to 11 January 1979.

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge 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 a UOTHC discharge.

10.  In his request for discharge, he indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 6 March 1979, the separation authority approved his request for discharge and directed that he be discharged UOTHC and reduced to the lowest grade.

12.  On 6 March 1979, he was discharged accordingly.  He completed a total of 
1 year, 6 months, and 9 days of creditable active military service and accrued a total of 197 days of time lost.

13.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  The applicant provides a self-authored statement in which he contends that he dropped out of high school to join the Army.  He was promoted to PFC before going AWOL and he had only one infraction, for giving a false name to a military police officer.  While assigned in Germany he was introduced to heroin and when he went on leave he decided not to come back to that culture.  He was only 20 years old when he went AWOL.  He contacted his commander in Germany and informed his commander he was using drugs.  He was not offered any treatment program but he was ordered to return to his unit.  He also contacted the U.S. Army Post at Seneca, NY and informed them of his drug problem and that he did not want to go back to Germany.  He was told that they could not help him.  He went AWOL so he could stop using heroin.  After 197 days of being AWOL he surrendered.  He contends he wanted to remain in the Army but he was informed that he would be discharged with a general discharge under other than honorable conditions.  He was never offered any treatment, counseling or any mitigating action that would have allowed him to stop his drug usage and remain a Soldier.  He has led a successful life since his separation and has been employed and raised a family.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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'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.

2.  His contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was more than 19 years of age when he enlisted, had satisfactorily completed training, and he was promoted to PFC prior to departing AWOL.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

3.  The applicant’s record clearly shows that he indicated on his Personnel Control Facility Information Sheet that he did not desire help and wanted to be separated from the Army as soon as possible.  He authenticated this document with his signature.

4.  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)                                         AR20100020934



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ABCMR Record of Proceedings (cont)                                         AR20100020934



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