BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100022896 


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 a general discharge.

2.  The applicant states:

* He is in prison in California
* He has been in and out of prison since 1982 due to drug abuse
* He believes the time he spent in Germany while serving in the Army is the reason he has spent so much of his life in prison
* He was identified as a hashish abuser prior to his discharge from the Army
* When he went in the Army he was 17 years old and had never used drugs
* He believes the Army is responsible for his life of drugs
* He should have received rehabilitation
* He wants his discharge upgraded so he can go to the Department of Veterans Affairs (VA) hospital and turn his life around

3.  The applicant provides a Report of Medical Examination, dated 11 December 1975, in support of his application.

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.  At age 17, the applicant enlisted in the Regular Army on 10 April 1974 for a period of 2 years.  He completed his training and was awarded military occupational specialty 11E (Armor Crewman).  He was transferred to Germany on 16 September 1974.

3.  On 3 November 1975, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.

4.  On 3 December 1975, charges were preferred against the applicant for leaving his sentinel post, disobeying a lawful order, two specifications of using disrespectful language, possessing marijuana and heroin, breach of peace, and violating a lawful general regulation (by having in his possession 2 hypodermic syringes).  Trial by special court-martial was recommended.  

5.  On 11 December 1975, he underwent a separation physical examination and was found qualified for separation.  His Report of Medical Examination, dated 
11 December 1975, states, in pertinent part, he was a hashish abuser.  On
11 December 1975, he underwent a mental status evaluation and was found mentally responsible.

6.  On 6 January 1976, after consulting with counsel, the applicant submitted a 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 indicated in his request he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might 


encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

7.  On 14 January 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  On 16 January 1976, a legal review was conducted of his case and there was no legal objection to approving his request for discharge.  The legal review pointed out the discharge was based in whole or in part on drugs, the applicant was identified as a drug abuser, and the illegal possession was based on probable cause seizure.

9.  On 12 February 1976, NJP was imposed against the applicant for stealing gasoline.

10.  He departed Germany on 18 February 1976.

11.  He was separated with an undesirable discharge on 20 February 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 1 year, 10 months, and 
11 days of total active service.

12.  On 11 December 1979, the Army Discharge Review Board denied his request for an honorable or general discharge.  

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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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, 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 evidence of record supports his contention he was identified as a hashish abuser prior to discharge.    

2.  His contention he should have received rehabilitation for his drug abuse does not justify the misconduct for which he was convicted.  Also, there is no evidence he took steps to self-refer for drug abuse treatment while in the Army.

3.  A discharge is not changed for the purpose of obtaining VA benefits.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  His record of service included two NJPs and serious offenses for which special court-martial charges were preferred.  As a result, his record of service was not satisfactory.  The applicant's record of service is insufficiently meritorious to warrant a general 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)                                         AR20100022896



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022896



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1