IN THE CASE OF:	 

		BOARD DATE:	6 October 2011

		DOCKET NUMBER:  AR20110006094


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 change of his undesirable discharge to a medical discharge.

2.  The applicant states he should receive a medical discharge because he was addicted to heroin, and he shared, as well as paid for, heroin from others.

3.  The applicant provides no other evidence.

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 24 June 1969 for a period of
3 years.  He completed training and he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).
3.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 28 July 1970 for wrongfully appropriating a case of "C" rations, the property of the U.S. Government, on 27 July 1970
* 28 August 1970 for causing a breach of peace by firing off firecrackers on 25 August 1970
* 30 August 1970 for leaving the confines of his unit without a valid Armed Forces Liberty Pass on 24 August 1970
* 3 October 1970 for assaulting another Soldier by grabbing him with his hands and for disobeying a lawful order from a senior noncommissioned officer to get on a truck

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 12 November 1971 through
5 April 1972.

5.  On 12 February 1972, court-martial charges were preferred against the applicant for:

* 3 specifications wrongfully selling a habit-forming narcotic (heroin) on
1 and 14 January 1972
* 1 specification of wrongfully transferring a habit-forming narcotic (heroin) on 1 January 1972
* 1 specification of unlawfully striking another Soldier in the face with his fist on 9 February 1972

6.  On 21 March 1972, he consulted with legal 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 that were available to him.  Subsequent to receiving this legal counsel, 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.

7.  In his request for discharge, he indicated he understood that by requesting discharge he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits 

administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 30 March 1972, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 8 April 1972, he was discharged accordingly.  His DD Form 214 confirms he completed 2 years, 9 months, and 15 days of total active service with a character of service of under conditions other than honorable.

9.  His available records do not indicate he suffered an injury or illness that would have warranted his referral to the Physical Disability Evaluation System (PDES).

10.  On 3 October 1973 and 28 September 1978, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.  On 13 July 1993, the ABCMR denied his request for an upgrade of his discharge.

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation
40-501 (Standards of Medical Fitness), chapter 3.

13.  Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present 

with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for change of his undesirable discharge to a medical discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  His record indicates he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  His characterization of service is commensurate with his overall record of military service.

4.  With respect to a medical discharge, there is no evidence in the available record and he failed to submit any evidence that shows he suffered from a medical condition that limited his ability to perform in his grade and MOS or that would have warranted his entry into the PDES.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting his 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)                                         AR20100008950



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006094



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1