IN THE CASE OF:	  

		BOARD DATE:	 29 January 2013 

		DOCKET NUMBER:  AR20120014645 


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 undesirable discharge (UD) to a general discharge (GD) under honorable conditions.

2.  The applicant states:

	a.  he is now 61 years old and has been in and out of prison for the last 38 years due to his heroin addiction which started in the Army; and

	b.  while young and vulnerable, he was led astray by some older Soldiers who returned from Vietnam when he began his use of heroin.

3.  The applicant provides:

* self-authored statement
* detailed description of supporting documents
* Turner Center Industrial Complex Program Assignment and Offender Program Assignment/Arrival Notices
* Tennessee Department of Correction Substance Abuse Individual Treatment Plan
* award certificate
* DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge)
* Department of Veterans Affairs Form 10-10EZ (Application for Health Benefits)


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 military record shows he enlisted in the Regular Army on 18 March 1969.  He was trained in and awarded military occupational specialty 11E (Armor Crewman).

3.  His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted by a special court-martial of being absent without leave (AWOL) twice, from 20-26 October 1969 and from 4 November 1969-25 February 1970.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was twice promoted to private/E-2, on 26 July 1969 and 1 July 1970, and this was the highest rank he attained while serving on active duty.  He was also twice reduced and his last reduction was to private/E-1 on 25 March 1971.

5.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) of the applicant's DA Form 20 shows he accrued 381 days of lost time due to nine separate occasions of AWOL or confinement between 4 May 1969 and 9 February 1971.

6.  The applicant's official military personnel file is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, his record does contain a properly-constituted DD Form 214 that shows he was discharged for the good of the service on 2 April 1971 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

7.  The applicant's DD Form 214 shows he completed 11 months and 15 days of creditable active military service.  It also confirms he received a UD.

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

9.  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.  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 discharge (HD) or GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to a GD.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and that he received a UD.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The UD the applicant received was normal and appropriate under the regulatory guidance and considering the length of his AWOL, his service clearly did not support a GD at the time of his discharge nor does it support an upgrade now.

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)                                         AR20120014645



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120014645



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1