IN THE CASE OF:	  

		BOARD DATE:	    21 September 2011

		DOCKET NUMBER:  AR20110005052 


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 upgrade of his under conditions other than honorable discharge to a general under honorable conditions discharge.

2.  He states he enlisted in the Army in May 1967 and was sent to Vietnam in October 1967.  He adds that he was honorably discharged in October 1970.  He states he reenlisted and was returned to Vietnam for a second tour in 1970.  He offers that when he returned to the U.S. in 1971, he was drinking heavily and doing drugs.  He says that near the end of his second enlistment, he went on a drinking and drugging binge and went absent without leave (AWOL).  He maintains that he turned himself in and was sent to confinement at Fort Dix, NJ.  While in confinement, he suffered from the effects of withdrawing from the drugs and signed a waiver to forgo a trial and possible confinement.

3.  He provides the following:

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Self-authored statement
* Honorable Discharge Certificate
* Undesirable Discharge Certificate
* Enlistment Contract
* Letter Orders Number 10-1908407, dated 21 October 1970
* Certificate of Appreciation, dated 19 June 1970
* Letter, Subject:  Request for Discharge for the Good of the Service
* Letter, Subject:  Presidential Program for Return of Military Deserters
* DA Form 20 (Enlisted Qualification Record)

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 record shows he enlisted in the Regular Army on 31 May 1967.  He served 3 years and 19 days on active duty and was honorably released on 19 June 1970.  On 31 July 1970, he reenlisted.  He served two tours in Vietnam:  22 October 1967 to 16 October 1968 and 17 September 1970 to 
24 November 1971.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the following offenses:

* On 20 August 1969, for falling asleep on duty as barracks sergeant 
* On 3 October 1969, for failing to go at the time prescribed to his appointed place of duty on 1 October 1969
* On 23 April 1973, for failing to obey three lawful orders 
* On 28 August 1973, for being absent from his appointed place of duty on 25 August 1973 and remaining absent until 26 August 1973

4.  Headquarters, 35th Engineer Group, Fort Bragg, NC, Summary Court-Martial Order Number 43, dated 23 July 1971 shows he was found guilty of wrongfully communicating a threat to two Soldiers on 20 April 1971.

5.  Headquarters, 35th Engineer Group, Fort Bragg, NC, Summary Court-Martial Order Number 7, dated 31 May 1973 shows he was found guilty of being absent from his place of duty from 2400 hours 2 May 1973 until 0645 hours 3 May 1973. He was also found guilty of being absent from his place of duty from 1300 hours 15 May 1973 until 0700 hours 16 May 1973.  
6.  Headquarters, 1st Support Command, Fort Bragg, NC, Special Court-Martial Order Number 112, dated 31 July 1973 shows he was found guilty of being AWOL from 4 June 1973 to 25 June 1973.  He was also found guilty of attempting to break arrest and for causing a breach of peace by using loud and profane language on 1 June 1973.

7.  On 2 October 1974, charges were preferred against him for being AWOL on three separate occasions:  31 August 1973 to 7 September 1973; 7 September 1973 to 9 October 1973; and 11 January 1974 to 28 September 1974.

8.  On 25 November 1974, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

9.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Department of Veterans Affairs benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to submit a statement in his behalf.

10.  In his statement he explained that the first time he went AWOL was because he was on drugs and fed-up with not getting paid.  The second time he went AWOL was to get married.  He stated that upon his return from AWOL, on both occasions, he was sent to the stockade.  He offered that he is trying again to be released from his duty so that he may return to his home and job.  He concluded that he wanted to finish paying his bills and lead a normal life.

11.  On 29 November 1974, the appropriate authority approved his request for discharge and directed the issuance of an undesirable discharge.

12.  On 10 December 1974, he was discharged accordingly.  His DD Form 214 shows he was discharged under conditions other than honorable and issued an Undesirable Discharge Certificate.  It also shows he completed 6 years, 4 months, and 7 days of total active service with over 386 days listed as lost time.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
14.  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, the 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.  A discharge under other than honorable conditions would normally be directed for an individual who was discharged for the good of the service.

15.  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 argues, in effect, that his discharge should be upgraded because of his drug and alcohol abuse.  There is no evidence in the available records to show the applicant had an addiction problem during his period of military service and/or sought counseling to correct this problem.  Therefore, his contention that his use of drugs and alcohol led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial.

3.  His record of service included three courts-martial, four Article 15s, and 386 days of lost time.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant’s request. 
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)                                         AR20110005052





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ABCMR Record of Proceedings (cont)                                         AR20110005052



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