BOARD DATE: 28 April 2011
DOCKET NUMBER: AR20100025385
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 (UD) be upgraded to an honorable discharge.
2. The applicant states he was a good Soldier, as evidenced by his excellent conduct and efficiency ratings. Then he injured himself three times in training accidents. He began drinking alcoholic beverages to control his pain and his drinking became a problem. When he departed absent without leave (AWOL) the first time everyone in his command knew he had a problem with alcohol but nobody offered him any assistance. When he departed AWOL the second time he was afraid to return because he had previously been AWOL.
3. The applicant provides excerpts from his military records.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 29 February 1972, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-3.
3. The applicant's DA Form 20 (Enlisted Qualification Record) shows his conduct and efficiency were rated as "excellent" while he was in basic combat training (BCT) and advanced individual training (AIT). As soon as he was assigned to a unit as permanent party, his ratings fell to "good" and then "unsatisfactory."
4. The applicant accepted nonjudicial punishment (NJP) for being AWOL from 14 to 20 June 1973.
5. On 6 June 1974, court-martial charges were preferred against the applicant for being AWOL from 7 August 1973 to 31 May 1974.
6. On 6 June 1974, after consulting with legal counsel, the applicant requested discharge in lieu of court-martial for the good of the service. Submitted along with that request was a statement from him in which he said "Harassment turned me toward drug and also they are prejudice. Family Problems. I cannot take anymore harassment and I don't think I will ever become a good Soldier. I need to be with my family. I will accept a UD."
7. The applicant's request was approved by the appropriate authority. Accordingly, on 1 August 1974 he was given a UD. He had 1 year and 7 months of active duty and 303 days time lost.
8. The medical records provided by the applicant show that he injured his:
a. right foot in a parachute jump on 21 December 1972. He was given a
1-week physical profile limiting his physical activities.
b. back and right shoulder (place of injury not readable) on 14 February 1973. He was given pain relievers.
c. ribs and front shoulder blade in a parachute jump on 2 May 1973. He was given a week of physical profile restrictions and 10 codeine pills.
9. Army Regulation 635-200 (Enlisted Separations) 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.
10. Army Regulation 635-200 sets forth the basic authority 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant was, in fact, injured three times and treated for those injuries. However, they were minor injuries, with two resulting in him being given a week worth of physical limitations, and one only resulting in him being given pain medication.
2. Therefore, the applicant's statement that he used alcohol to manage his pain is not accepted.
3. This is reinforced by his statement when he requested discharge, that harassment had turned him to drug use, that his command was prejudiced, and that he had family problems. He did not mention alcohol use or being in pain.
4. The applicant only had excellent conduct and efficiency ratings while in BCT and AIT. He did not have excellent ratings when a duty Soldier. His 303 days of AWOL is certainly not acceptable conduct and performance. Therefore, his UD was appropriate and there is no reason to change it.
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.
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