BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009753 


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:

	a.  during the late 1970's and throughout the 1980's discharges due to drug use and being absent without leave (AWOL) during the Vietnam era were routinely upgraded or changed because opportunities for counseling and/or drug rehabilitation had changed from slim to a lot.

	b.  he is not trying to receive benefits for loans or education but to simply upgrade his discharge.  He is already eligible for some Department of Veterans Affairs medical benefits but since he is a "lifer" in prison even that would not affect things.

	c.  he was young and using heroin and barbiturates continuously.  He was not counseled about the repercussions of an undesirable discharge or given any rehabilitation or drug counseling.

3.  The applicant provides no documentary 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 was born on 4 February 1955.  At the age of 18 years and
25 days, he enlisted in the Regular Army on 28 February 1973 for a period of
4 years.  He completed his training and he was awarded military occupational specialty 11B (light weapons infantryman).

3.  Records show he was AWOL:

* on 4 June 1973
* on 30 July 1973
* from 21-22 August 1973
* from 5-19 November 1973
* from 21-25 November 1973

4.  In December 1973, charges were preferred against him for his period of AWOL from 5-19 November 1973 and breaking restriction.  Trial by special court-martial was recommended.

5.  On 3 December 1973, after consulting with counsel, the applicant submitted a 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.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of 


an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated he had taken drugs in civilian life but nothing compared to what he started taking at Fort Lewis, WA.  He went AWOL in June 1973 for about 5-6 days and received an Article 15 for it.  He went AWOL again in August 1973 and when he returned he was placed in the stockade pending a court-martial but he did not get one.  He further stated:

* instead he was released and given an Article 15
* a week after his release he went to his commander and turned himself in for drug abuse because he was addicted to heroin
* he was placed in a halfway house on post but he was not rehabilitated
* he told he was going to be discharged under chapter 13
* he went AWOL again in November 1973 with the intention of never returning
* his wife and family asked him to turn himself in and he did
* he was put on restriction
* he broke restriction and was placed in confinement pending a court-martial
* he thinks the Army should discharge him
* he has a job waiting for him

6.  On 17 January 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

7.  On 25 January 1974, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  He completed 8 months and 7 days of total active service with 81 days of time lost.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

9.  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 3-7b 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 contends he was young; however, age is not a sufficiently mitigating factor.  He was 18 years of age when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

2.  He contends he was not counseled about the repercussions of an undesirable discharge.  However, evidence shows on 3 December 1973 he consulted with counsel prior to submitting his voluntary request for discharge for the good of the service - in lieu of trial by court-martial.

3.  He contends he was not given any rehabilitation or drug counseling.  Although there is no evidence that shows he was diagnosed with drug abuse or dependency prior to his discharge, in his December 1973 statement he indicated he was placed in the halfway house on post for drug abuse.  As such, it appears he was afforded treatment and/or counseling.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  Since his brief record of service included 81 days of time lost and 2 Article 15's (according to his December 1973 statement), his record of service was not satisfactory.  Therefore, his service is insufficiently meritorious to warrant 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)                                         AR20120009753



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ABCMR Record of Proceedings (cont)                                         AR20120009753



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