IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110002538 


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 to an honorable discharge.

2.  The applicant states he was introduced to marijuana in Vietnam and was cited for being absent without leave (AWOL) twice, but otherwise his service was rated good.

	a.  He states that while the separation documents show he had been charged five times with possession of narcotics, there is record of only one charge and conviction.

	b.  He states that due to his youth and immaturity he simply refused his rights in conjunction with the separation and complied to get out of what was becoming a worse experience than Vietnam.  He also states the counseling he received regarding his substance abuse was inadequate by today's standards.

	c.  He states he was addicted to drugs and alcohol for over 37 years and was unable to receive any assistance from the Department of Veterans Affairs (VA) due to his less than honorable discharge.  He states he is only asking for an upgrade to get some help.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); two letters of reference; and several pages of medical, dental, and personnel documents including separation-related 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 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.  His records show he was born on 2 December 1953.  He enlisted in the Regular Army on 19 November 1971 at 17 years, 11 months, and 18 days of age.  He completed initial entry training and was awarded military occupational specialty 63B (wheel vehicle repairman).  The highest rank/grade he attained was private first class/E-3.

3.  He accepted nonjudicial punishment (NJP) on two occasions during the period 17 January to 10 February 1973 for failing to go at the time prescribed to his appointed place of duty ("PDF Guard," Building 521, Military Assistance Command Vietnam Annex, Saigon, RVN) and for being AWOL from his organization in Vietnam during the period 6 to 8 February 1973.

4.  Headquarters, 2d Battalion, 52d Air Defense Artillery Element, Special Court-Martial Order Number 2, dated 11 February 1974, shows he was tried and convicted of possession of approximately 12.5 grams of marijuana.

5.  On 15 February 1974, his commander advised him that discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations) had been initiated for his elimination from the service by reason of unfitness.

6.  He was advised by counsel of the basis for contemplated action to accomplish his separation for unfitness under Army Regulation 635-200 and his rights.  He acknowledged having been advised of the possible effects of an undesirable discharge.  He acknowledged that as a result of the issuance of such a discharge, he would be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He waived his rights in conjunction with this action and he chose not to make a statement on his own behalf.

7.  His DD Form 214 shows he was discharged on 5 April 1974 under the provisions of Army Regulation 635-200, chapter 13, with a separation program designator code of 384 (unfitness – drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana).  He was issued an Undesirable Discharge Certificate.  He completed 2 years, 4 months, and 17 days of creditable active service.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unfitness for drug abuse, such as drug dependence or the unauthorized use, sale, possession, or transfer of any controlled substance, or the introduction of such a controlled substance onto any Army installation or other government property under Army jurisdiction.  When separation for unfitness was warranted, an undesirable discharge was normally given.

10.  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.

11.  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 discharge with a characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  His record shows he accepted NJP for failing to go at the time prescribed to his appointed place of duty and for being AWOL from his organization in Vietnam.  He was also tried and convicted by court-martial of possession of approximately 12.5 grams of marijuana.

2.  Based on his offenses, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The available evidence confirms his rights were protected throughout the discharge process.

4.  Records show he was 20 years old at the time he refused his rights in conjunction with his separation.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is an insufficient 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 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)                                         AR20110002538



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ABCMR Record of Proceedings (cont)                                         AR20110002538



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