IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120000769 


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 that his undesirable discharge be upgraded.

2.  The applicant states he was addicted to heroin and completed detoxification in a military hospital at Bad Krueznach, Germany.  Approximately 3 months after his release from the hospital he relapsed and was apprehended by the German police and turned over to military authorities the next day.  He states that at the age of 18 he did not understand what it meant to be charged with a "trace" of heroin and cocaine or what an undesirable discharge meant.  He also states he has tried to present his case numerous times and has always been turned away.

3.  The applicant provides a two-page letter explaining his application and a copy of his professional portfolio.

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 was born on 30 September 1955 and enlisted in the Regular Army at 17 years of age in Philadelphia, Pennsylvania, on 24 January 1973 for a period of 3 years, training as a unit supply specialist, and assignment to the 8th Infantry Division (Europe).

3.  He completed basic training at Fort Dix, New Jersey, and his advanced individual training at Fort Jackson, South Carolina, and was transferred to Mainz, Germany, on 5 June 1973.

4.  On 26 September 1973, nonjudicial punishment was imposed against him for not being clean-shaven.

5. On 4 July 1974, the applicant and another Soldier were apprehended at 2250 hours by Germany law enforcement officials and arrested for possession of cocaine and other drugs and paraphernalia and attempted trafficking.  They were released to military police authorities on 5 July 1974.

6.  On 13 August 1974, charges were preferred against the applicant for the wrongful and unlawful possession of two tablets of methaqualone (commonly known as Quaaludes); 0.12 grams, more or less, of cocaine; .03 grams, more or less, of heroin; and trace amounts of marijuana.

7.  On 23 September 1974 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), 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 elected not to submit a statement in his own behalf.

8.  The applicant's company and battalion commanders recommended disapproval of his request, indicating that the applicant was pending trial by a special court-martial for possession of a large quantity of drugs and should be tried for his offenses.  However, if approved, they recommended issuance of an undesirable discharge.

9.  The applicant's brigade commander recommended approval with a undesirable discharge.

10.  On 17 October 1974, the appropriate authority (a major general) approved the applicant's request and directed issuance of an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 29 October 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 9 months, and 6 days of active service.

12.  On 21 November 1974, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He stated he had completed a rehabilitation program at Bad Kreuznach successfully at that time and was completely off drugs.

13.  On 24 July 1975 after reviewing all of the facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request for an upgrade of his discharge.

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 characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

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 for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial 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 or mitigating circumstances before a trial by court-martial, he voluntarily requested 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, supporting documents, and post-service accomplishments have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his misconduct and his undistinguished record of service.  Therefore, given the circumstances surrounding his discharge, 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.

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)                                         AR20120000769



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ABCMR Record of Proceedings (cont)                                         AR20120000769



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