IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021571 


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 to a more favorable discharge.

2.  The applicant states that his misconduct occurred when he was very young and since that time he has changed his life.  He goes on to state that for the last 12 years he has been in recovery from substance abuse and he has had no other behavioral issues since getting into recovery.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or 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.  He was born on 6 October 1947 and was inducted into the Army of the United States in Chicago, Illinois, with a moral waiver on 19 February 1968.  He completed basic training at Fort Leonard Wood, Missouri, and advanced individual training as a petroleum storage specialist at Fort Lee, Virginia, before being transferred to Fort Hood, Texas, for his first duty assignment.

3.  He was transferred to Vietnam on 7 January 1969 and was assigned to the 512th Quartermaster Company at Long Binh.  He was advanced to pay grade 
E-4 on 25 January 1969.

4.  On 11 February 1969, nonjudicial punishment (NJP) was imposed against him for being incapacitated for the proper performance of his duties due to previous indulgence in intoxicating liquor.

5.  On 10 May 1969, NJP was imposed against him for failing to go to his place of duty.

6.  On 19 May 1969, NJP was imposed against him for breaking restriction.

7.  On 10 June 1969, he was convicted by a summary court-martial of two specifications of breaking restriction.  He was sentenced to a forfeiture of pay and restriction.

8.  On 26 June 1969, the applicant's commander imposed a bar to reenlistment against the applicant.

9.  His records also show his commander initiated action in June 1969 to discharge him from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  However, on 28 June 1969 the applicant was apprehended for leaving the scene of an accident and was found in possession of illegal narcotics, for which charges were preferred against him.

10.  On 17 July 1969 after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He elected not to submit a statement in his own behalf.

11.  On 25 August 1969, the appropriate authority (a brigadier general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged on 29 August 1969 under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 6 months, and 11 days of total active service.

13.  On 17 August 1984, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 20 January 1987, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still normally considered appropriate.

15.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

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 record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct, his overall record of service, and the absence of mitigating circumstances.  His service simply did not rise to the level of even 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 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)                                         AR20100021571



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ABCMR Record of Proceedings (cont)                                         AR20100021571



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