BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100026475 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states that his record was flawless until he was over medicated after being medically evacuated from Vietnam with multiple fractures to his right wrist.  He further states that the medication he was prescribed caused him to make thoughtless decisions.

3.  The applicant provides no additional evidence in support of this case.

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.  The applicant's records show he enlisted in the Regular Army on 21 April 1969 for a period of 3 years.  He completed the required training and he was awarded military occupational specialty 67A (Aircraft Maintenance Apprentice).  The highest grade he attained was pay grade E-4.

3.  He served in Vietnam from on or about 9 August 1970 to 13 September 1970, when he was medically evacuated.

4.  On 19 November 1970, nonjudicial punishment (NJP) was imposed against the applicant under Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by possessing alcoholic beverages in the barracks. 

5.  On 28 November 1970, NJP was imposed against the applicant for failure to go to his appointed place of duty.

6.  On 7 December 1970, NJP was imposed against the applicant for being drunk and disorderly in quarters.

7.  The applicant's records contain a Standard Form 600 (Chronological Record of Medical Care) which states that on 8 June 1971 he had sustained a fracture to his right wrist and the cast was taken off while the applicant was absent without leave (AWOL).

8.  On 8 July 1971, a special court-martial (SPCM) convicted the applicant of being AWOL from on or about 12 May 1971 through on or about 1 June 1971.  The resultant sentence included a reduction to private (PV1)/E-1.

9.  On 9 July 1971, NJP was imposed against the applicant for failure to go to his appointed place of duty.

10.  On 20 August 1971, an SPCM convicted the applicant of committing an assault upon another Solider by pointing at him with a pistol, for violating a lawful general regulation by failing to notify the Military Police, for failing to remain at the scene of an accident until released by the investigating Military Police, and for escaping from lawful custody.

11.  On 8 October 1971, court-martial charges were preferred against the applicant for one specification of being AWOL, from 19 September 1971 through 4 October 1971.

12.  On 5 October 1971, 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 court-martial.  In his request for discharge the applicant indicated that he had not been coerced into requesting discharge and he had been advised of the implications that were attached to the request.

13.  The applicant consulted with legal counsel on 5 October 1971 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge and issuance of an Undesirable Discharge Certificate, and of the procedures and rights that were available to him.  He further acknowledged that 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf.

14.  On 29 October 1971, the separation authority approved the applicant's request for discharge and directed that he receive a UD.  On 9 November 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 2 years, 1 month, and 15 days of creditable active military service and that he accrued over 100 days of time lost.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations

16.  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, 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.

17.  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.

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 contention that he was on prescribed medication that made him make a bad decision was carefully considered.  There is no evidence and the applicant did not submit any evidence that shows that prescribed medication caused him to make a bad decision. 

2.  The evidence of record shows the applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records reveal a disciplinary history that included violating a lawful general regulation, failing to go to his appointed place of duty, being drunk and disorderly, AWOL, and assaulting another Soldier.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20100026475



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ABCMR Record of Proceedings (cont)                                         AR20100026475



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