IN THE CASE OF:	 

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008263 


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, in effect, an upgrade of his undesirable discharge. 

2.  The applicant states, in effect, that while he was serving in the Republic of Vietnam (RVN):

* He became addicted to heroin
* He requested help and was denied
* He went absent without leave (AWOL) to get help outside of the Army
* He got clean and turned himself in for discharge

3.  The applicant provides no documents in support of his application.

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's records show he enlisted in the Regular Army on 20 February 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four /E- 4. 

3.  Item 30 (Remarks) of the applicant's DA Form 214 shows that he served in the RVN from 30 September 1970 through 3 September 1971.

4.  Between 15 September 1971 and 20 January 1972 the applicant accepted nonjudicial punishment under Article 15 for the following offenses:

* being AWOL
* wrongfully appearing without a hat and Identification (ID) Card in the Division area
* failing to be at appointed place of duty

5.  A DD Form 458 (Charge Sheet), dated 9 January 1973, shows court-martial charges were preferred against the applicant for one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL for the period 5 June 1972 through 8 January 1973.

6.  On 9 January 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

7.  Following counseling, the applicant submitted a voluntary written request for 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.  

8.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   The applicant submitted a statement in his own behalf indicating:

* he has 18 months of good time and 10 months of bad time
* he is pending charges for 8 months of AWOL
* he feels the Army is real good if it is for you
* he tried to make a go of the Army after returning from the RVN 
* the Army is just not for him and he is no good for the Army
* he understood everything about an undesirable discharge
* he just wanted out of the Army

9.  On 19 January 1973, his unit commanders recommended approval of his request for discharge for the good of the service with the issuance of an Undesirable Discharge Certificate.

10.  On 26 January 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 
10.  He directed the applicant's reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.

11.  On 31 January 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 2 months, and 9 days of total creditable active military service with 272 days of lost time.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.



15.  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 applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2. The applicant's record shows he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  He submitted a statement with his request, but he did not indicate at that time that the Army would not help him with a drug problem.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  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 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)                                         AR20120008263





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ABCMR Record of Proceedings (cont)                                         AR20120008263



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