IN THE CASE OF:	  

		BOARD DATE:	    18 August 2011

		DOCKET NUMBER:  AR20110003516 


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 discharge under conditions other than honorable be upgraded to general under honorable conditions.

2.  The applicant states:

* his discharge is unjust because he was not offered the opportunity for drug abuse counseling or rehabilitation
* he is in need of Department of Veterans Affairs (VA) health care

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), and excerpts of Title 38 (Pensions, Bonuses, and Veterans' Relief), chapter 1.

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 27 June 1974.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Automotive Mechanic).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions.  Pertinent information regarding the Article 15 action is unavailable.

4.  On 31 July 1980, charges were preferred against the applicant for possessing a hypodermic syringe with a hypodermic needle and heroin.

5.  On 13 August 1980, the applicant consulted with counsel 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 of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  Additionally, in his request for discharge, the applicant stated, "that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

8.  On 18 August 1980, the applicant's unit commander recommended approval of the applicant's request for discharge because the applicant had a drug abuse problem and had been in the active phase of the Drug and Alcohol Program.  The commander also indicated the program had not been able to effect any substantial rehabilitative results as indicated by the charges preferred against the applicant.  On 19 August 1980, the battalion commander concurred with the unit commander's recommendation.

9.  On 20 August 1980, the separation authority approved the applicant's request for discharge and directed his discharge under other than honorable conditions.  On 25 August 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 2 years, 8 months, and 17 days of creditable active service during the period under review.

10.  On 21 June 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  At the time, a discharge under conditions other than honorable was normally considered appropriate.

12.  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 contentions that his discharge should be upgraded to general under honorable conditions because he was not offered the opportunity for drug abuse counseling or rehabilitation and he needs VA health care was carefully considered and found to be without merit.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under the provisions of this chapter are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

4.  The available evidence shows the applicant was not responsive to the rehabilitative efforts of his command.  In his request for discharge, the applicant voluntarily declined further rehabilitation and he was aware of the consequences of any action which would demonstrate an inability or refusal to participate in, cooperate in, or successfully complete.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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)                                         AR20110003516



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003516



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1