BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110024882 


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 an honorable or a general discharge.

2.  The applicant states:

	a.  He had no real problems in the Army, except for being absent without leave (AWOL) for a few days, until his company got a new commander who did not like him personally.  Admittedly, he had a drug problem with marijuana but he voluntarily talked with counselors.  He was told he would have to be quarantined at the center for the first month, so he refused treatment.

	b.  After he refused treatment, his commander took him to the post stockade and scheduled him to appear before a court-martial.  After a few weeks, the commander visited him in the post stockade and offered him a chapter 10 discharge.  He feels his due process was denied because he was not given the chance to talk to anyone from the staff judge advocate's office or be represented by counsel.  He was told if he did not sign the chapter 10 and was found guilty by a court-martial he could be sent to prison for retraining.  He was scared to death and he had no chance to talk to legal counsel, so he signed the request.  His discharge should be upgraded because he was denied legal counsel.

3.  The applicant provides his discharge orders and two statements of support.


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 3 November 1972.  He completed training and he held military occupational specialty 12B (Combat Engineer).  On 25 January 1973, he was assigned to the 15th Engineer Battalion, 9th Infantry Division, Fort Lewis, WA.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 20 March 1973, for wrongfully possessing and using marijuana
* 10 October 1973, for being AWOL from 6 to 23 September 1973

4.  On 17 January 1974, a line of duty investigation was conducted and determined that on 1 October 1973 the applicant took an overdose of barbiturates that he did not have a prescription for and he was hospitalized for treatment.  His injury was found to have been caused by his own intentional misconduct and was not in the line of duty.

5.  On 22 March 1974, the applicant was barred to reenlistment under the provisions of Army Regulation 601-280 (Army Reenlistment Program).

6.  On 23 November 1974, court-martial charges were preferred against the applicant for one specification each of:

* Wrongfully possessing marijuana
* Failing to go at the time prescribed to his appointed place of duty
* Being AWOL from 18 to 23 November 1974
* Losing a protective mask through neglect

7.  On 11 December 1974, he acknowledged he was afforded the opportunity to consult with legal defense counsel, his request for discharge shows he was advised of the basis for the contemplated trial by court-martial.  He was advised that his offenses were punishable by a bad conduct 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 available to him.

8.  Following consultation with legal counsel, the applicant 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 was making this request of his own free will and had not been subjected to any coercion.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

9.  He further acknowledged he understood that if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), 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.

10.  In a self-authored statement, the applicant stated he joined the Army after being expelled from school and not finding employment.  He had received two Article 15s for possession of marijuana and one for going AWOL.  In October 1973, he was hospitalized for an overdose of drugs and put on the drug program.  In March 1974, he received a rehabilitative transfer but everything went downhill after a new commander took command, so he went AWOL in November 1974.  He further stated he was not good at being a Soldier and thought he would do better as a civilian and requested he receive a chapter 10 discharge with an Undesirable Discharge Certificate.

11.  On 2 January 1975, his immediate commander recommended approval of the applicant's request for discharge with the issuance of an Undesirable Discharge Certificate.  He stated during an interview with the applicant that the applicant stated that he had no desire to remain in the Army and he did not care what type of discharge he received.

12.  The senior commanders recommended approval of the applicant's request due to his unsatisfactory duty performance, attitude, and inability to conform to the Army's system of discipline.

13.  On 21 January 1975, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  On 31 January 1975, he was discharged accordingly.  He completed 2 years, 2 months, and 6 days of total active service with 22 days of time lost due to AWOL.

14.  The DD Form 214 (Report of Separation from Active Duty) 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 a character of service of "under other than honorable conditions" and issuance of a DD Form 258A (Undesirable Discharge Certificate.

15.  On 8 May 1975, the Army Discharge Review Board determined he had been properly discharged and denied his request for an upgrade of his discharge.

16.  The applicant provides two undated statements of support wherein his landlord and an acquaintance stated the applicant pays his bills on time, and he is a likeable, friendly, and responsible person.

17.  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 VA 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.

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 of service 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 of service 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.  The evidence of record shows that after consultation with legal counsel, he voluntarily requested discharge to avoid a trial by court-martial.  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 two occasions for wrongfully possessing and using marijuana, and for being AWOL.  He subsequently went AWOL again and in addition was charged with wrongfully possessing marijuana, failing to go to his appointed place of duty, and losing Government property.

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 rendered his service unsatisfactory.

4.  In view of the foregoing, there is no basis for upgrading the applicant's undesirable discharge to either 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)                                         AR20110024882



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ABCMR Record of Proceedings (cont)                                         AR20110024882



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