BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110022752 


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 his undesirable discharge be upgraded to honorable or at least a general, under honorable conditions.

2.  The applicant states he was incarcerated in Vietnam and was seen by counsel who advised him to request a chapter 10 discharge.  His counsel assured him he would not have a problem having his discharge upgraded when he returned to the states but this did not happen.  He felt it was the right thing to do considering the advice he received.  Other than an error in judgment and getting involved with drug use, he served honorably and carried out his duties.  He had had problems off and on since his discharge and finally got his life in order.  In the past 15 years, he has completed substance abuse counseling courses and has worked in halfway houses and homeless shelters.  He is proud to have served his country and feels his deserves his discharge upgraded.

3.  The applicant provides a letter.

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's records show he enlisted in the Regular Army on 12 January 1970 and he held military occupational specialty 91B (Medical Specialist).  

3.  On 3 April 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 29 March to 2 April 1970.

4.  On 30 November 1970, he was assigned to the 7th Medical Detachment, Vietnam.

5.  On 20 May 1971, he received NJP under the provisions of Article 15, UCMJ, for being absent without authority from his appointed place of duty.

6.  On 6 June 1971, he received NJP under the provisions of Article 15, UCMJ, for failing to report to his appointed place of duty at the time prescribed.

7.  On 27 July 1971, he was admitted to the 67th Evacuation Hospital, Vietnam, for treatment of opiate withdrawal.

8.  On 6 September 1971, court-martial charges were preferred against him for one specification of wrongfully possessing heroin and one specification of escaping from lawful custody.

9.  On 18 October 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

10.  Following consult with legal counsel, he 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.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that  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 and he could expect to encounter substantial prejudice in civilian life.

11.  On 23 October 1971, his immediate commander recommended approval of his request for a discharge with an undesirable discharge.  He stated the applicant had proven himself to be a continual problem.  He had been in possession of illegal narcotics and attempted to transfer them.  His actions made him totally incapable of functioning on the job.

12.  On 23 and 25 October 1971, his intermediate and senior commanders recommended approval of his request for a discharge and stated the applicant had been involved with drugs as a user, attempted to transfer heroin to patients in the hospital, and had escaped from the lawful custody of an officer.  Both commanders recommended the applicant be issued an undesirable discharge.

13.  On 27 October 1971, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a separation program number of 246 and directed the issuance of an Undesirable Discharge Certificate.

14.  On 17 November 1971, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He completed 1 year, 10 months, and 2 days of active service with 4 days of time lost due to AWOL.  

15.  On 15 January 1975, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. 

16.  The applicant provides a letter, dated 2 February 1977, written by a psychiatrist and former unit member, wherein he stated he served with the applicant in Vietnam and found him to be a capable, trustworthy individual who did his job well.  He did find it necessary to transfer the applicant to the hospital when he learned the applicant was using heroin.  At the time, he understood Soldiers who sought help for their drug problems would receive amnesty and was surprised to learn the applicant received a less than honorable discharge.

17.  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 included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

18.  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.

19.  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 evidence of record shows the applicant was charged with the commission of offenses 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  There is no evidence and he provides no evidence that shows he received erroneous legal advice.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP on three different occasions for being AWOL, being absent from his appointed place of duty, and failing to report to his appointed place of duty.  He was subsequently charged with possessing heroin, attempting to transfer heroin to hospital patients, and escaping from custody which was the basis for his voluntary discharge.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge 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)                                         AR20110022752





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ABCMR Record of Proceedings (cont)                                         AR20110022752



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