BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110005296 


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 undesirable discharge to a general discharge.

2.  The applicant states that while serving in Korea his commanding officer made sexual advances towards him.  Following his refusal of these advances he was "transferred to another company which was considered to be the misfit company."  It was there that he got involved with drugs and began going absent without leave (AWOL).  Upon leaving Korea he was reassigned to Fort Knox, KY which is not what he had in mind.  He continued to use drugs and went AWOL again.  He met another drug user and got further involved in the use of harder drugs.  He was arrested for burglary and spent 30 days in a county correction facility.  He was later arrested by military police, returned to military control, and he was subsequently discharged.  He attests he has been a model citizen since his discharge, but recently experienced some difficulties which resulted in him currently being unemployed and residing in homeless veterans housing.  He is participating in training and hopes to get back on his feet.  He contends that had he been offered rehabilitation things would have been different.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 30 December 1968 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11E (Armor Crewman).  He served in Korea from 22 May 1969 to
7 September 1970.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 13 April 1970 for wrongfully using an unauthorized pass on 10 April 1970 with intent to defraud and being absent from his unit from on or about 1900 - 2300 hours on 10 April 1970
* 1 June 1970 for breaking restriction on 30 May 1970
* 24 August 1970 for failing to go at the time prescribed to his appointed place of duty on 7 August 1970, being AWOL from 8-20 August 1970, and disobeying a lawful order from a superior noncommissioned officer (NCO)
* 20 January 1971 for being absent from his place of duty from 0740 - 1300 hours on 18 January 1970
* 1 March 1971 for being AWOL from 23-26 February 1971

4.  Summary Court-Martial Order Number 13, issued by Headquarters,
1st Battalion, 73rd Armor Regiment, dated 7 August 1970, shows the applicant was found guilty of willfully disobeying a lawful command from a superior commissioned officer and breaking arrest on two separate occasions.

5.  A DD Form 458 (Charge Sheet), dated 24 November 1971, shows court-martial charges were preferred against the applicant for being AWOL from

1 - 24 April 1971 and 30 April - 23 November 1971, in violation of Article 86 of the UCMJ.  His chain of command recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.

6.  On 2 December 1971, the applicant consulted with legal counsel and he 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit statements in his own behalf.

7.  His record contains a Standard Form (SF) 88 (Report of Medical Examination) and an SF 89 (Report of Medical History) that shows he underwent a preseparation medical examination on 30 August 1973.  These documents do not indicate he had a drug addiction or show he was diagnosed with any illnesses, defects, or conditions at the time and show he was medically qualified for separation.

8.  On 7 December 1971 and 7 January 1972, respectively, his company and intermediate commander recommended approval of his request for discharge for the good of the service with an Undesirable Discharge Certificate.

9.  On 14 January 1972, the separation authority (a major general) approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.

10.  On 18 January 1972, the applicant was discharged accordingly.

11.  On 27 August 1973, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge to an honorable discharge so he could use his veterans' educational benefits.

12.  On 13 December 1973, The Adjutant General notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

13.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's claim that his behavior would have been better had he been offered an opportunity for rehabilitation is unsubstantiated.  His record is void of any evidence and he has not provided any evidence showing that he had a drug addiction and that he was subsequently denied assistance.

3.  His record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on numerous occasions and being convicted by a summary court-martial.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200,
chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

6.  Based on his record of indiscipline, the applicant's post-service accomplishments following his discharge are not sufficient to mitigate the misconduct that led to his voluntary request for discharge.

7.  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)                                         AR20110005296



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ABCMR Record of Proceedings (cont)                                         AR20110005296



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