IN THE CASE OF:
BOARD DATE: 26 May 2011
DOCKET NUMBER: AR20100026651
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).
APPLICANT'S REQUEST, STATEMENT AND EVIDENCE:
1. The applicant requests upgrade of his undesirable discharge to a general discharge under honorable conditions.
2. The applicant states he was addicted to drugs at the time of his enlistment and throughout his period of service.
3. The applicant provides no additional documents.
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 applicant was separated on temporary records that are still the only ones available for review.
3. The applicant enlisted in the Regular Army on 17 March 1969. Notwithstanding a nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) while he was in advanced individual training, he completed training as a light weapons infantryman and was posted to Vietnam in October 1969.
4. A 3 April 1970 special court-martial found him guilty of AWOL from 25-27 December 1969 and 11 January-2 February 1970, resisting apprehension on 2 February, escaping custody on 4 February, and breaking restriction on 9 February 1970.
5. At an 11 June 1970 mental status evaluation the applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal, and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.
6. The applicant was notified of his commander's intention to separate him for unfitness. He consulted with counsel and waived personal appearance at and consideration by a board of officers. He also waived the right to submit statements in his own behalf and representation by counsel.
7. He was recommended for separation with an undesirable discharge due to unfitness. The recommendation was approved and the applicant was so discharged on 29 July 1970 under the provisions of Army Regulation 635-212. He had completed 1 year and 15 days of satisfactory service with 118 days of lost time.
8. On 17 February 1978 and 6 November 1980, the Army Discharge Review Board denied the applicant's requests to upgrade his discharge.
9. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant relates that he was addicted to drugs at the time of his enlistment and throughout his period of service.
2. The applicant presented no evidence or argument to show how his alleged addiction mitigated the misconduct that led to the discharge.
3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4. In view of the foregoing there is no basis for granting the applicant's requested relief.
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) AR20100026651
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ABCMR Record of Proceedings (cont) AR20100026651
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