IN THE CASE OF:	  

		BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002930 


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 to honorable.

2.  The applicant states he had drug problems (i.e., amphetamines, opium, marijuana, and depressants) and although he asked for help, he never received help.  It is unfair that he served in Vietnam and other people who went to Canada were granted amnesty.  He further states he also accidently shot the tip of his finger off when the trigger of his weapon got caught on a vine.

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 30 September 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E- 4.

3.  His records show he accepted punishment under the Uniform Code of Military Justice on three separate occasions for the following infractions:

* sleeping at his guard post
* failing to ensure his weapon was on safe allowing it to discharge accidently
* being absent without leave (AWOL) 7 June-21 June 1970

4.  On 12 October 1970, court-martial charges were preferred against him for two specifications of being AWOL for the periods:

* 31 July-22 August 1970
* 18-26 September 1970

5.  On 17 October 1970, he consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  He indicated he understood that if his request were accepted, he could be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

7.  He elected not to submit a statement in his own behalf. 

8.  On 29 October 1970, the discharge authority approved his request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 29 October 1970.

9.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 11 months, and 17 days of creditable active service with 52 days of time lost due to AWOL.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  There is no evidence the applicant suffered from drug abuse or dependency or that he sought assistance from his chain of command for a drug problem during his period of service.

12.  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 under other than honorable conditions 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 contends that his discharge should be upgraded because he had drug problems and, although he asked for help, he never received help.

2.  There is no evidence and he has not provided any evidence to show he had a drug problem or that he sought assistance through his chain of command for a drug problem.  In the absence of documentation to support his claim, the presumption of regularity must be applied.

3.  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 evidence further shows he admitted he was guilty of being AWOL on two separate occasions.  He voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

4.  His record of service included 52 days of 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.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  In view of the above, his request should be denied.

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)                                         AR20130002930



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002930



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1