IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029840 


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 undesirable discharge (UD).  

2.  He states he received many injuries that were overlooked and neglected when he requested treatment.  He has lived with these injuries for many years. He is requesting an upgrade because he is suffering from a disease he got while in the Army.  He is dying soon.  He does not have any medical or personal records, but his injuries were clearly sustained while he was serving his country.  He has worked very hard trying to improve his country's image, and God bless America.   

3.  He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a DD Form 293 (Application for the Review or Discharge or Dismissal from the Armed Forces of the United States).

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 military records show he was inducted into the Army of the United States on 21 April 1969.  He completed training and was awarded military occupational specialty 62K (Crane Operator).  He was honorably discharged on 18 January 1970 for the purpose of immediate enlistment.  He enlisted in the Regular Army on 19 January 1970, for 3 years.  

3.  He served in Germany from 13 January 1970 through 16 February 1971.

4.  On 3 November 1970, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for operating a vehicle while drunk on 14 July 1970.

5.  A DA Form 3349 (Medical Condition - Physical Profile Record), dated 18 March 1971, shows he was found medically qualified for duty with limitations due to right knee pain.  

6.  He served in Vietnam from 19 March through 28 December 1971.

7.  A DA Form 2800 (Criminal Report of Investigation), dated 1 November 1971, shows he was apprehended on 30 October 1971 after an investigation disclosed he sold suspected heroin to a confidential informant.  When apprehended, he was found to be in possession of an unknown quantity of suspected heroin.  

8.  A DD Form 458 (Charge Sheet) that was prepared by the Commander, 137th Engineer Company (Light Equipment), dated 2 November 1971, shows that on 30 October 1971 the applicant was charged with wrongful:

* possession of heroin
* selling of a habit-forming narcotic (heroin)
* introduction of a habit-forming drug onto a military base for the purpose of selling it

9.  On 27 November 1971, after consulting with counsel, he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veteran's Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 29 November 1971, the applicant's company and group commanders recommended approval of the applicant's request and the issuance of a UD.  The company commander stated that there were no reasonable grounds for the belief the applicant is, or was at the time of his misconduct, mentally defective, deranged, or abnormal.  He did not believe the applicant would be receptive to any appropriate efforts at rehabilitation.

11.  On 8 December 1971, the appropriate authority approved the applicant's request for discharge for the good of the service, reduction to pay grade E-1, and directed the issuance of a UD Certificate.

12.  His DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignment), shows he was in a patient status from 28 December 1971 to 21 February 1972.  His records do not show the reason for his patient status.

13.  He was discharged accordingly in pay grade E-1 on 23 February 1972.  He was credited with completing 1 year, 11 months, and 10 days of active service and had 79 days of lost time. 

14.  There is no evidence he had any medical conditions at the time he separated.

15.  On 30 March 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

16.  On 6 August 1982, 8 September 1993, and 12 March 2001, the National Personnel Records Center, issued a Certificate of Military Service for his honorable period of service from 21 April 1969 through 18 January 1970.

17.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 stated 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 in lieu of trial by court-martial at any time after the charges were preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

18.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found not to have merit.

2.  The evidence of record shows he was punished once under Article 15 while he was in Germany.  He arrived in Vietnam in March 1971, and while assigned to that theater he was arrested in November 1971 and charged with possessing, selling, and introducing heroin onto a military installation with the intent to sell it.  After consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial upon his return to military control.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  In his request, he acknowledged he understood he could be issued a UD.  The applicant's company commander recommended approval of the applicant's request and stated he did not believe the applicant would be receptive to any appropriate efforts at rehabilitation.

3.  The evidence of records also shows he was medically qualified for duty with limitations due to right knee pain on 18 March 1971.  He was in a patient status from 28 December 1971 to 22 February 1972, prior to his discharge and the reason is unknown.  There is no evidence of record and he has provided no evidence to show he sustained injuries during his period of active duty 

4.  He has submitted no evidence to mitigate his offenses or to show he was unjustly discharged.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or honorable discharge.

5.  In the absence of evidence, it appears his administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for medical or other benefits administered by the VA.

7.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100029840



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ABCMR Record of Proceedings (cont)                                         AR20100029840



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