IN THE CASE OF:	  

		BOARD DATE:	  23 April 2014

		DOCKET NUMBER:  AR20130014049 


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, upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he became a drug addict at the time he entered the military and he has post-traumatic stress disorder.  He adds that he is heroin free and needs Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no documentary 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.  On 15 September 1969, he was inducted into the Army of the United States.  He was awarded military occupational specialty 76A (Supply Clerk).  The highest rank he held was private first class/pay grade E-3.
3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice as follows:

* 14 October 1969 - for being absent without leave (AWOL) from 
13-14 October 1969 while in basic combat training
* 20 October 1969 - for failing to go at the time prescribed to his appointed place of duty
* 24 July 1970 - for being AWOL from 15-22 July 1970 from the Overseas Replacement Station

4.  A DD Form 458 (Charge Sheet), dated 18 February 1971, shows court-martial charges were preferred against the applicant for being AWOL from his unit in Vietnam beginning on 19 January 1971.

5.  U.S. Army Personnel Control Facility, Headquarters Command, U.S. Army Training Center Engineer and Fort Leonard Wood, Special Orders Number 236, dated 7 December 1972, show the applicant was returned to military control from an AWOL status effective 4 December 1972.

6.  His DA Form 20 (Enlisted Qualification Record) shows the following periods of AWOL:  12-13 October 1969, 15-21 July 1970, and 19 January 1971 to 3 December 1972.

7.  His discharge packet is not available for review.  However, his records show that on 22 December 1972 he was discharged from active duty.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at that time shows a separation program number of 246, denoting he was discharged under the provisions of chapter 10, Army Regulation 635-200 - for the good of the service.  This form shows his service was characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.

8.  His DD Form 214 further shows he completed 1 year, 4 months, and 14 days of net creditable active military service with 248 days of time lost under Title 10 U.S. Code, section 972 and 446 days of time lost on or subsequent to normal expiration term of service.

9.  The applicant's records document no acts of valor, significant achievement, or service warranting special recognition.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
  
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 VA 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 to an individual who was discharged for the good of the service.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  He received NJP on three occasions (all before ever arriving in Vietnam), and he was charged with being AWOL from his unit in Vietnam.  He had 248 days of time lost prior to his normal expiration term of service date.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.
4.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though the applicant's records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant a general discharge or an honorable 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 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)                                         AR20130014049



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ABCMR Record of Proceedings (cont)                                         AR20130014049



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