BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130005001 


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 or general under honorable conditions.

2.  The applicant states he was not competent enough to make the type of life-changing decision that he made at the time of his discharge due to his addiction to heroin.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 11 March 1970 and he held military occupational specialty 72C (Teletype Switchboard Operator).

3.  On 19 August 1970 while assigned to Fort Lewis, WA, awaiting transportation to Vietnam, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his assigned unit from 13 to 18 August 1970.

4.  On 30 August 1970, he was assigned to the 504th Signal Company, Vietnam.

5.  On 14 December 1970, he was reported as AWOL from his assigned unit and he was dropped from the rolls as a deserter on 15 January 1971.  On 30 January 1971, he was returned to military control and to the 504th Signal Company.

6.  On 8 March 1971, court-martial charges were preferred against him for one specification each of:

* being AWOL from 14 December 1970 to 30 January 1971
* wrongfully possessing marijuana
* violating a lawful regulation by being in an off-limits area

7.  On 22 March 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, and the procedures and rights available to him.

8.  Following consultation with legal counsel, the applicant 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.  He acknowledged he understood that if his discharge request were approved, he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

9.  On 30 March 1971, his immediate commander recommended approval of his request for a discharge with the issuance of an Undesirable Discharge Certificate.  The commander stated that on 18 March 1971 while waiting trial by court-martial for desertion, possessing marijuana, and being in an off-limits area, he threatened to do bodily harm to another Soldier.  In addition, his conduct and efficiency had been most unsatisfactory during the prior 2 months.

10.  On 31 March 1971, his intermediate commander strongly concurred with the immediate commander's recommendation.  He recommended the issuance of an Undesirable Discharge Certificate and stated the applicant's record did not justify an honorable discharge.

11.  His records contain a Standard Form 89 (Report of Medical History), dated 2 April 1971, wherein it shows he stated his medical condition was good and he had no medical problems/issues except for frequent indigestion.

12.  On 2 April 1971, the examining physician found the applicant had no mental or physical defects except for a scar on his right calf and determined he was fully qualified for an administrative separation.

13.  On 5 April 1971, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 9 April 1971, he was discharged accordingly.

14.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He completed 11 months and 7 days of net active service with 52 days of lost time due to being AWOL.

15.  There is no evidence in his records that shows he was diagnosed with or treated for an addiction to drugs during his active duty service.

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

17.  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 included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to 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.

	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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His record of service shows he was AWOL for 5 days prior to his service in Vietnam.  During his service in Vietnam he was AWOL for 42 days and was also charged with possessing marijuana and violating a lawful regulation.  There is no evidence that shows he was ever diagnosed with or treated for any drug addiction while serving on active duty.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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 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)                                         AR20130005001



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ABCMR Record of Proceedings (cont)                                         AR20130005001



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