IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100023658 


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 that will qualify him for Department of Veterans Affairs (VA) benefits.

2.  The applicant states he had migraine headaches during advanced individual training and he was given “Fiorinal” for a few months.  He goes on to state that mental health told that he might be addicted and he was cut off without a Detox program.  He further states that he found himself getting into trouble a lot over drugs.  He also states that he has been sober and clean for 25 years and he now has medical problems that he needs to take care of and an upgrade of his discharge will allow him to receive care from the VA. 

3.  The applicant provides a one-page letter explaining his application and 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.  On 16 April 1970, the applicant was inducted into the Army of the United States in Los Angeles, California with a moral waiver for driving under the influence of a non-narcotic drug.  He was transferred to Fort Ord, California to undergo training.  

3.  After being recycled in basic training he remained at Fort Ord to undergo advanced individual training and it appears he was again recycled.

4.  On 20 August 1970, nonjudicial punishment (NJP) was imposed against him for being absent from his unit (bed check).

5.  The applicant went absent without leave (AWOL) from 16 September to 20 September 1970; however, the record is silent as to any punishment imposed for this offense.

6.  On 24 November 1970, NJP was imposed against him for being AWOL from 20 November to 24 November 1970.

7.  On 26 January 1971, he was convicted by a summary court-martial of being AWOL from 7 December to 14 December 1970, from 16 December to 20 December 1970, and for disobeying a lawful order from a superior noncommissioned officer (first sergeant).  He was sentenced to confinement at hard labor and reduction to pay grade E-1.

8.  On 1 February 1971, he underwent a psychiatric evaluation and the examining psychiatrist determined that there was no evidence of mental disease, defect or derangement sufficient to warrant medical disqualification under the provisions of Army regulation 635-40.  He also deemed the applicant capable distinguishing right from wrong and adhering to the right.  He deemed him to be responsible for his actions and contended that he possessed the mental and emotional capacity to understand and participate in board and legal proceedings.  He also deemed the applicant not to be amenable to rehabilitation.

9.  On 16 March 1971, the applicant’s commander notified him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-212 for unfitness due to his involvement in frequent incidents of a discreditable nature with civil and military authorities.  He cited as the basis for his recommendation applicant's repeatedly showing a lack of desire and unwillingness to accomplish assigned tasks.  He was repeatedly late for work and when he was at work he constantly shirked his duties.  He also had two AWOL offenses.

10.  After consulting with counsel the applicant elected to request a personal appearance before a board of officers.

11.  On 21 April 1971, a board of officers convened and the applicant appeared with counsel.  After hearing all of the testimony and reviewing all of the available evidence the board of officers recommended that the applicant be discharged for unfitness and that he be issued an Undesirable Discharge Certificate.  The appropriate authority (a major general) approved the findings and recommendation on 8 May 1971.

12.  On 27 April 1971, he was arrested by civil authorities for possession of dangerous drugs.

13.  Accordingly, on 17 May 1971, he was discharged under the provisions of Army Regulation 635-212 for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities and issued an undesirable discharge.  He had served 11 months and 25 days of total active service and he had 47 days of lost time due to being AWOL and in confinement.  He was still in a trainee status.

14.  On 5 October 1972, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  He contended that he had become addicted to “Fiorinal” that he was prescribed for his headaches and by the time he was taken off the drug he began experimenting with barbiturates.  He went on to state that he was arrested for possession of barbiturates and he was put on probation and his probation officer agreed that he could still do the service some good.  He also indicated that he had no problems with headaches or drugs and he had a better idea about what was right.

15.  On 27 March 1974, after reviewing the available facts and circumstances as well as the evidence submitted, the ADRB determined that his discharge was both proper and equitable and denied his request for an upgrade of his discharge.

16.  Army Regulation 635-212, in effect at the time, set forth the authority for the separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.
17.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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.

18.  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 discharge under the provisions of Army Regulation 635-212 was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case.

3.  The applicant's contentions and supporting documents have been considered by the Board; however, they are not sufficiently mitigating when compared to his overall undistinguished record of service.

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)                                         AR20100023658



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ABCMR Record of Proceedings (cont)                                         AR20100023658



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