BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020997 


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 general discharge to an honorable discharge.

2.  He states he served in the military from 26 June 1970 to 20 December 1972 and fell a victim to drugs.  He opines he should have been treated for drug addiction.  He offers he was a good troop, went airborne, and achieved the rank of specialist four SP4/E-4.  He maintains that he has since addressed his addiction to drugs through rehabilitation.

3.  He does not provide any 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 26 June 1970 for a period of 3 years.  He was honorably discharged on 26 May 1971 for immediate reenlistment in which he accomplished the following day.  The highest grade he obtained was SP4/E-4.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on:

* 10 January 1972 for failing to go at the time prescribed to his appointed place of duty
* 24 July 1972 for being absent without authority from 0730 to 1200 hours on 20 July 1972 

4.  On 8 December 1972, charges were preferred against him for being absent without leave (AWOL) from 5 September 1972 to 17 October 1972 and
8 November 1972 to 7 December 1972.

5.  On 8 December 1972, after consulting with counsel, the applicant requested 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.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all Veterans' Administration benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

7.  On 11 December 1972, the applicant underwent a medical examination in which he stated "my health is good."  He was subsequently cleared for separation.

8.  On 15 December 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

9.  On 20 December 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge.  He completed 1 year, 4 months, and 13 days of active service this period with 71 days listed as lost time.

10.  On 30 October 1975, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 2 August 1978, after careful consideration of his case under the provisions of Public Law 95-126, Department of Defense, Special Discharge Review Program, the ADRB directed that his discharge be upgraded.  He was subsequently furnished a general discharge that was affirmed on 8 September 1978.

11.  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 3-7a 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 11 December 1972 the applicant underwent a medical examination in which he stated his health was good.  There is no evidence in his available record and he has provided no evidence to show he suffered from drug dependency during his military service or that his dependency was the cause of his indiscipline and subsequent separation.  Therefore, this contention is not supported by evidence of record.


2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record also shows he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

3.  Although his discharge was upgraded to general under honorable conditions under the provisions of Public Law 95-126, Department of Defense, Special Discharge Review Program, his record of service included two NJPs and 71 days lost time.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

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 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)                                         AR20120020997





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ABCMR Record of Proceedings (cont)                                         AR20120020997



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