IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110025133 


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 under other than honorable conditions.

2.  The applicant states he was discharged from the Army for testing positive for drugs.  He did not do anything against the service and he believes that being under the influence was not sufficient to warrant a discharge.  He further states he was unaware of the specifics of his discharge because he was not in possession of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides a copy of his DD Form 214.

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 10 February 1970 for a period of 3 years.  He completed one-station unit training as a wheel vehicle repairman at Fort Ord, California, and was transferred to Germany on 26 July 1970.

3.  On 19 October 1970, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 20 October 1970 for a period of 3 years and assignment to Vietnam.

4.  He departed Germany on 17 November 1970 with orders directing him to report to the Overseas Replacement Company at Fort Lewis, Washington, on 3 January 1971.  However, he did not report as ordered and was reported as being absent without leave (AWOL).

5.  He remained absent in desertion until he was returned to military control at Fort Lewis on 15 March 1971 and charges were preferred against him for the unauthorized absence.

6.  On 25 March 1971, he was convicted pursuant to his plea by a special court-martial of being AWOL from 3 January to 15 March 1971.  He was sentenced to confinement at hard labor for 3 months; however, on 30 March 1971 the convening authority suspended that portion of the sentence in excess of 35 days confinement at hard labor for a period of 5 months, unless sooner vacated.

7.  The applicant was transferred to Vietnam on 19 April 1971 and remained in Vietnam until 29 February 1972 when he was transferred to Letterman General Hospital in San Francisco, California, due to his improper use of drugs (barbiturates).

8.  On 8 April 1972, he was transferred to Sacramento Army Depot, California, for assignment to the 605th Combat Support Company.

9.  On 30 June 1972, charges were preferred against the applicant for being AWOL from 12 April to 25 June 1972.

10.  On 7 July 1972 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He elected to submit a statement in his own behalf wherein he asserted that he did not like the separation between ranks, he did not think he could be rehabilitated, he would continue to be AWOL until discharged, and he did not care what kind of discharge he received because he had a job waiting for him.  The applicant again went AWOL on 10 July 1972.

11.  On 17 July 1972, the appropriate authority (a major general) approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.

12.  On 2 August 1972, he was discharged in absentia under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years and 9 days of total active service and had 164 days of lost time due to AWOL and confinement.

13.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

14.  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 includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still 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.

16.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial for being AWOL (not for testing positive for drugs) was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct, his overall record of service, and the absence of mitigating circumstances.  His service simply did not rise to the level of an honorable or a general discharge.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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 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)                                         AR20110025133



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ABCMR Record of Proceedings (cont)                                         AR20110025133



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