IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120002832 


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 a general discharge.

2.  The applicant states he was discharged based on a drug problem that he has since confronted.  He also claims he was not informed he could apply to upgrade his discharge by his legal counsel at the time of his discharge.

3.  The applicant provides:

* a self-authored letter
* a letter from the Community Medical Services, Phoenix, AZ, dated
19 January 2012

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 inducted into the Army of the United States on 18 July 1968.  He was trained in and awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  It further shows he was advanced to private first class (PFC)/E-3 on 5 January 1970, and that this is the highest rank/grade he held while on active duty.

3.  The applicant’s disciplinary history includes:

	a.  his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 12 October 1968, for being derelict in the performance of his duties on 9 October 1968 by falling asleep while on security guard.

	b.  conviction by a special court-martial (SPCM) for violating Article 86, UCMJ by being absent without leave (AWOL) from 6 May to 2 September 1969.

4.  On 1 May 1970, the applicant departed AWOL from his unit at Fort Irwin, CA.  He was dropped from the rolls (DFR) of the organization on 29 May 1970.  He remained in an AWOL/DFR status for 165 days until returning to military control at Fort Ord on 13 October 1970.

5.  The applicant's record further shows he accrued a total of 291 days of time lost during four separate periods of AWOL/DFR between 6 May 1969 and
12 October 1970.

6.  The applicant's complete separation packet containing all the facts and circumstances surrounding his separation processing are not available for review.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge from Active Duty) that identifies the authority and reason for his discharge.  It confirms he was separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu to trial by court-martial.  It further shows at the time of his discharge on 15 December 1970, he held the rank/grade of private (PV1)/E-1 and he completed 1 year, 7 months, and 8 days of total active service with
291 days of time lost due to AWOL/DFR.

7.  The applicant provides a letter from the Community Medical Services, dated 19 January 2012, that indicates he successfully completed treatment for opiate dependency.
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 Veterans Administration 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.

	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.

	b.  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 applicant’s request to upgrade his discharge because subsequent to discharge he has confronted his drug abuse problem has been carefully considered.  However, while his successful treatment for opiate dependency is noteworthy, it is not sufficiently mitigating to support an upgrade of his discharge.

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 offense(s) 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 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’s record reveals a disciplinary history that includes his acceptance of NJP, a SPCM conviction, and his accrual of 291 days of time lost due to AWOL/DFR.  It further shows he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.

4.  The undesirable discharge the applicant received was normal and appropriate under the regulatory guidance in effect at the time based on his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120002832



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ABCMR Record of Proceedings (cont)                                         AR20120002832



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