BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120016718 


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 (UOTHC).

2.  The applicant states his reasons are listed on an attached Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim); however, no such form was attached to his application.

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 17 October 1969.  He was honorably discharged for the purpose of immediate reenlistment on 21 July 1970. 
His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at that time shows he completed 9 months and 5 days creditable active duty service.

3.  On 22 July 1970, the applicant reenlisted in the Regular Army in the rank of private first class/E-3.  He served in military occupational specialty 36C (Lineman).

4.  Pursuant to his pleas, a special court-martial (SPCM) convicted the applicant of violating the following articles of the Uniform Code of Military Justice (UCMJ) on 20 July 1971 as indicated:

* Article 80 – for wrongfully attempting to use heroin (a habit-forming drug)
* Article 92 – for wrongfully possessing narcotic paraphernalia, to wit:  one hypodermic syringe, one broken hypodermic needle, and two hypodermic needles

5.  The applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) contains a DD Form 261 (Report of Investigation), dated 11 April 1972.  It shows the applicant incurred an injury and was admitted to the U.S. Army Hospital, Ryukyu Islands, following a drug overdose on 16 March 1972.

6.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant accrued 126 days of lost time during the following periods:

* 28 April-27 May 1972 – absent without Leave (AWOL)
* 28 May-16 August 1972 – dropped from the rolls
* 24 August-7 September 1972 – confinement

7.  The applicant's AMHRR contains Headquarters, Fort Huachuca, AZ, 1st Endorsement, dated 19 July 1972, subject:  Personnel Dropped from the Rolls of Their Organizations as Deserters.  It shows he was confined at the Pima County Jail, Tucson, AZ

8.  His record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the records do contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged for the good of the service in lieu of trial by court-martial in the rank of private/E-1 on 25 September 1972 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed 1 year, 9 months, and 28 days of creditable active duty service during this period of which 126 days were lost time.

9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	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.

	c.  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 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 service.  This document confirms the applicant was discharged UOTHC in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This separation document carries with it a presumption of government regularity in the separation process.

2.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he would have been 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.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The discharge UOTHC the applicant received was normal and appropriate under the regulatory guidance.  Considering his repeated AWOL offenses, his service clearly did not support an honorable or general discharge at the time of his separation 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)                                         AR20120016718



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ABCMR Record of Proceedings (cont)                                         AR20120016718



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