IN THE CASE OF:	  

		BOARD DATE:  12 April 2012

		DOCKET NUMBER:  AR20110021874 


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 discharge.

2.  The applicant states he served the best he could considering the conditions at that time.

3.  The applicant provides no supporting documents. 

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 14 January 1971.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 71B (Clerk Typist).  The highest rank/grade he attained while serving on active duty was private first class/E- 3. He served in Vietnam from 6 March 1972 through 3 August 1972.

3.  On 3 July 1972, the applicant was informed by his commanding officer that he had been identified through urinalysis testing as being a drug user.  He declined rehabilitation. 

4.  On 14 July 1972, the applicant's unit commander requested authority to transfer him to the U.S. Army Drug Treatment Center for twice testing positive for drug use.  He also recommended the applicant be administratively discharged under the provisions of Army Regulation 635-212 for unfitness.

5.  On 19 July 1972, the applicant was transferred to the U.S. Army Drug Treatment Center.  Further processing of actions pending under the provisions of Army Regulation 635-212 was suspended and the applicant was evacuated for additional medical treatment.

6.  On 5 December 1972, court-martial charges were preferred against the applicant for violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing and wrongfully using marijuana on or about 29 November 1972.

7.  On 17 January 1973, the applicant acknowledged he had 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 undesirable discharge, and of the procedures and rights that were available to him.

8.  On 17 January 1973, 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.  

9.  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 was 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.


10.  On 14 March 1973, the separation authority approved the applicant's request for discharge .under the provisions of Army Regulation 635-200, chapter 10.  He directed issuance of a General Discharge Certificate.

11.  On 15 March 1973, the applicant was discharged accordingly.  He was credited with 2 years and 14 days of total service and 47 days of lost time.

12.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant provides no supporting documents.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence shows the applicant was offered rehabilitation for his drug use, but he declined to accept rehabilitation.
 
3.  The applicant's request for separation for the good of the service to avoid a trial by court-martial under the provisions of chapter 10 of Army Regulation    635-200 was voluntary, administratively correct, and in compliance with applicable regulations.
4.  The evidence shows the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time and that all requirements of law and regulations 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.

5.  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)                                         AR20120001118



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ABCMR Record of Proceedings (cont)                                         AR20110021874



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