IN THE CASE OF:	  

		BOARD DATE:  20 September 2012

		DOCKET NUMBER:  AR20120005911 


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 that shortly after he enlisted in April 1972, he was placed in the barracks filled with hardened Vietnam veterans.  He was only 18 years old and unready for the mayhem and stress that he endured living with heroin addicts.  He did not feel safe; he was depressed and exhausted by stress.  It was not long before he was compelled to use heroin and his life was terribly altered.  The applicant believes that his association with those Soldiers led him to the black market where he traded his military gear and to his distribution of heroin.  He adds he was young and too easily influenced but believed he had no choice.  He was absent without leave (AWOL) for 142 days because he feared for his life.  He turned himself in to military authorities, but he could not safely explain his desertion.  He was ashamed, frightened, and in despair.  He was told if he signed some papers he would receive a bus ticket home.  At that moment he would have signed any document to go home, no matter what it said.  The discharge he received caused him to lose job opportunities that has affected his self esteem.

3.  The applicant provides no additional evidence.

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 7 April 1972.  He was trained in and awarded military occupational specialty 13A (Field Artillery Basic).  The highest pay grade he achieved was E-2.

3.  On 23 May 1973, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for two incidents of unlawful concealment of two fellow Soldier's property, for one incident of disobeying a lawful order, and for unlawful concealment and carrying a weapon (a knife over six inches in length).

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was reported as being AWOL from 8 June to 27 October 1973.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged under other than honorable conditions on 21 November 1973 for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  It further shows he completed 1 year, 2 months, and 25 days of total active service with 142 days of lost time.

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

7.  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 the 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.  At the time, a discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

8.  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.

9.  Army Regulation 635-200, paragraph 3-7b, states 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins 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's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows that the discharge he received in 1973 was unjust and or unfair.

2.  The evidence of record shows the applicant received nonjudicial punishment for misconduct and for being AWOL for more than 142 days.

3.  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 Uniform Code of Military Justice 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 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.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120005911



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ABCMR Record of Proceedings (cont)                                         AR20120005911



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