BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110005902 


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 under other than honorable conditions discharge.

2.  The applicant states while he was in Germany he was curious about the effects of mind altering chemicals.  He states that being of such a vulnerable age and the availability of the drugs, he tried them all and became addicted to heroin.  He states that upon his return to the U.S. he replaced heroin with cocaine.  He states he went absent without leave (AWOL), was arrested, and incarcerated.  He states he was not offered any treatment or medical attention.  He states since his discharge he overcame his addiction to cocaine and started drinking.  He states he was recently released from a drug rehabilitation center, has found a higher power, and his senses.  He states that if he could have had treatment during his military service who knows what he could have accomplished in his life.

3.  The applicant provides a Certificate of Commencement.

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 22 May 1958.  His military records show he enlisted in the Regular Army on 17 November 1975.  He completed training and was awarded the military occupational specialty of combat engineer.  The highest rank/grade he attained was private first class/E-3.

3.  He accepted nonjudicial punishment (NJP) on two occasions during the period 12 July 1976 to 2 May 1977 for:

* wrongfully having in his possession an illegal substance (marijuana)
* failing to go at the time prescribed to his appointed place of duty

4.  His military records contain a DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program Military Client Intake and Follow-Up Record), dated 25 April 1977.

5.  A DA Form 3349 (Physical Profile), dated 25 April 1977, shows he was participating in a rehabilitation program.

6.  A 7th Infantry Division Letter, subject: Drug/Alcohol Nondependency Statement to the applicant's commander, dated 17 April 1978, indicated the applicant was interviewed to determine drug dependency.  The letter indicated the evaluation was based on interview, screening for physical/psychological manifestations, records of urinalysis test, prior facts, and prior program involvement which showed the applicant was not drug dependent at that time.

7.  He was charged with being AWOL during the period 1 June 1977 to 9 April 1978.

8.  On 17 April 1978, he consulted with counsel, waived his rights, and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He acknowledged he understood if his discharge request were approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He waived his rights and elected not to submit a statement in his own behalf.

9.  The separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given an under other than honorable conditions discharge.

10.  On 8 May 1978, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 7 months, and 10 days of active service with 312 days of lost time.

11.  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.

12.  Army Regulation 635-200 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

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.  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.  The applicant's records show he received NJP for wrongfully having marijuana in his possession and for failing to go at the time prescribed to his appointed place of duty.  He was also AWOL with a total of 312 days of lost time.

2.  He voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of a trial by court-martial.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He contends he received no treatment for his alleged drug addiction while in the military.  However, his records show he was in a rehabilitation program.  His request for discharge contained the statement that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

4.  Records show he was 17 years old when he enlisted in the Regular Army and 19 years old at the time he committed the offense for which he was discharged.  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.  In view of the foregoing, there is no basis for granting the 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)                                         AR20110005902



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005902



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1