IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110024023 


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 to either an honorable or a general discharge.

2.  The applicant states he was punished twice but he was not offered any help with his drug problem.  He never used drugs until after entering the Army and going to Vietnam.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 2981 (Application for Determination of Moral Eligibility for Enlistment), dated 27 January 1971
* DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 4 March 1971
* Special Orders Number 84, issued by Headquarters, VII COSCOM, dated 24 March 1972
* Army Europe (AE) Form 1107 (Bar to Enlistment/Reenlistment), dated
12 January 1973
* DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 August 1972
* DA Form 2627-1, dated 13 February 1973
* DA Form 268 (Report of suspension of Favorable Personnel Actions), dated 21 February 1973
* Unit Order Number 18, issued by Headquarters, 71st Maintenance Battalion, dated 23 February 1973
* Special Orders Number 66, issued by Headquarters, U.S. Army, Europe, dated 7 March 1973
* Pages 3 and 4 of DA Form 20 (Enlisted Qualification Record)

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 4 March 1971 for a period of
3 years.  He completed his initial training and he was awarded military occupational specialty 41J (office machine repairman).

3.  The applicant twice accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on:

* 28 August 1972, for disobeying a lawful order from a commissioned officer
* 13 February 1973, for twice failing to go to morning formation

4.  On 12 January 1973, an AE Form 1107 was initiated by the applicant's commander.  He based his bar to reenlistment recommendation on the applicant's 28 August 1972 NJP and his subsequent unsatisfactory duty performance.  The applicant required constant supervision and guidance to accomplish any work.  He displayed an irresponsible and negative attitude towards the military.  He refused to attend the Basic Leadership Course.  He has contributed little or nothing to the unit and he has become a burden.

5.  On 18 January 1973, the applicant acknowledged he was furnished a copy of his commander's intent to bar him from reenlistment, he was counseled and advised of the basis for the action, and he elected not to submit a statement in his own behalf.


6.  The intermediate commander recommended the applicant be barred from reenlistment.  The approval authority's decision is not in the available records.  However, the applicant’s DA Form 20 of record shows in item 42 (Remarks) the entry "Not recm for further svc" indicating his bar to reenlistment was approved and he was not recommended for further service.

7.  The DA Form 268, dated 21 February 1973, indicates the applicant was pending a special court-martial for two charges of being absent without leave (AWOL), one charge of disrespect, and two charges of disobedience.

8.  The applicant's discharge packet is missing from his military records.  However, his DD Form 214 shows that he was discharged on 30 April 1973 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, with a character of service of under conditions other than honorable and issuance of an Undesirable Discharge Certificate.  He completed 2 years, 1 month, and 27 days of total active service.

9.  There is no evidence of record and the applicant did not provide any evidence that shows he had a drug problem or that he or his chain of command had taken any action in regard to any such problem during his period of service.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 of that regulation states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 requires that the Board begin its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to either an honorable or a general discharge because he had a drug problem and he was not offered any help.

2.  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 offenses punishable under the UCMJ with a punitive discharge as indicated on the 21 February 1973 DA Form 268 contained in his official record.  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.

3.  The applicant contends he had a drug problem and he received no assistance as requested; however, there is no evidence of record and he did not provide any evidence to support his claim.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.  In addition, there is no evidence of record to show he served in Vietnam. 

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief for 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)                                         AR20110024023



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ABCMR Record of Proceedings (cont)                                         AR20110024023



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