IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110010062 


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.

2.  He states his record was clear.  While stationed at Fort Monroe, VA, he developed a drinking problem, as did many others.  He states he would never have done this or accepted this had he been sober.  He states the military gave him the alcohol free and his record was unblemished until then and after.

3.  He provides:

* an extract of Army Regulation 15-185 (Army Board for Correction of Military Records), chapter 4 (Miscellaneous Provisions)
* an undated letter from a Judge Advocate General's Corps (JAGC) captain, subject:  Discharge Under the Provisions of Chapter 10, AR (Army Regulation) 635-200
* his DD Form 214 (Report of Separation from Active Duty) for the period ending 4 April 1975

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 (RA) on 5 April 1968 for a period of 3 years.  On 27 January 1971, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted in the RA on 28 January 1971 for a period of 6 years.  The highest rank/grade he attained was sergeant (SGT)/E-5.

3.  His record contains DA Forms 2166-4 (Enlisted Efficiency Report) covering periods between October 1970 and September 1974 that show he received excellent or outstanding ratings for his duty performance.

4.  His record also includes a:

* Letter of Appreciation, dated 29 March 1974
* Letter of Commendation, dated 18 April 1974
* Certificate of Appreciation citing him as an outstanding Soldier, dated March 1974
* Certificate of Appreciation for outstanding services during the period 9 January to 26 September 1974

5.  The complete facts and circumstances leading to his discharge are not contained in the available records.

6.  His record includes a document entitled "Action of the Convening Authority," dated 26 March 1975.  This document shows a proper separation authority had considered the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, and directed his reduction to the lowest enlisted grade and his discharge with a DD Form 258A (Undesirable Discharge Certificate).  The separation authority also directed that his discharge would be annotated to reflect a nonwaivable moral and administrative disqualification barring him from further enlistment in the U.S. Army pursuant to the provisions of Army Regulation 601-280 (Army Reenlistment Program), paragraph 2-4, table 2-4, line C.

7.  On 4 April 1975, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows in:

* item 9c (Authority and Reason) he was discharged under the provisions of Army Regulation 635-200, chapter 10
* item 9e (Character of Service) the entry "under conditions other than honorable"
* item 9f (Type of Certificate Issued) the entry "DD Form 258A"
* item 18 (Record of Service – Total Active Service) he completed 7 years of total active service
* item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the:

* Bronze Star Medal
* Army Commendation Medal with one oak leaf cluster
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* Vietnam "Campaign" Medal with four bronze service stars
* Combat Infantryman Badge

* in item 27 (Remarks) the entry "Table 2-4, Line C, Par(agraph) 2-4,
AR 601-280 applies" 

8.  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.

9.  The applicant provides an undated memorandum from a JAGC captain.  The captain stated, in effect, he had researched the appropriate reentry (RE) code that should be given to individuals discharged under the provisions of Army Regulation 635-200, chapter 10, and opined that the applicant should have been assigned RE code "3."  He found, in pertinent part, RE code "4" was given when questionable moral character and a history of antisocial behavior was the basis of the discharge.  The captain stated he had discussed the matter with a fellow JAGC officer who opined that the Army could choose between RE code "3" and "4" when both codes apply.  He stated assignment of RE code "4" seemed improper because the applicant's conduct did not fit that described under
RE code "4."  He stated the matter should be appealed to the ABCMR under the provisions of Army Regulation 15-280.  (A review of historical Army regulations failed to locate an "Army Regulation 15-280."  It appears the captain intended to refer to Army Regulation 15-180 (Army Discharge Review Board)).

10.  In his closing paragraph, the JAGC captain stated he had enclosed six documents pertaining to the applicant's discharge.  The applicant did not provide these documents with his application and they are not present in his Official Military Personnel File (OMPF).


11.  The applicant provides an extract of Army Regulation 15-185, chapter 4.  This regulation provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  Chapter 4 states, in pertinent part, a former Army Soldier is entitled to an honorable discharge if a less than honorable discharge was issued to the Soldier on or before 27 November 1979 in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purposes of identifying drug abusers (either for the purpose of entry into a treatment program or to monitor progress through rehabilitation or follow-up).

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  

	b.  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.

	c.  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.

13.  Army Regulation 601-280, in effect at the time, prescribed the eligibility criteria governing the immediate reenlistment in the Regular Army of persons currently serving on active duty with the Army.  Table 2-4, line C lists the following nonwaivable moral and administrative disqualifications for reenlistment:  


* questionable moral character
* history of anti-social behavior
* sexual perversion
* having frequent difficulties with law enforcement agencies

DISCUSSION AND CONCLUSIONS:

1.  The available records do not show, nor has the applicant provided evidence showing, he suffered from alcohol dependency during his military service or that alcohol-dependency was the cause of his indiscipline and subsequent separation.

2.  It is unclear why the applicant believes he may be entitled to an upgrade of his discharge based on the provisions of Army Regulation 15-185, chapter 4.  The record does not show, nor has he provided evidence showing, the Army introduced evidence against him developed by or as a direct or indirect result of compelled urinalysis testing administered for the purposes of identifying drug abusers.

3.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service during his second enlistment.

4.  While there is no question that the applicant had been a good Soldier, the record shows he engaged in behavior that put him in the position of having to choose to face a court-martial or be discharged.  It must be presumed that the separation authority considered his overall record and determined his indiscipline that led to his discharge was not sufficiently distinguished to warrant a character of service other than under conditions other than honorable with an Undesirable Discharge Certificate as prescribed by the governing regulation.


5.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to an honorable or a general discharge.

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)                                         AR20110010062



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ABCMR Record of Proceedings (cont)                                         AR20110010062



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