IN THE CASE OF:	   

		BOARD DATE:	    8 May 2014

		DOCKET NUMBER:  AR20130015528 


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 undesirable discharge to a general discharge.

2.  The applicant states:

* he was absent without leave (AWOL) due to his drug addiction that began while serving in the military
* he was stationed in Germany where drugs were very hard to avoid in the barracks, this eventually led to a life that he did not enjoy
* he was court-martialed for going AWOL and his AWOL was due to him trying to get away from the individuals and circumstances where his drug abuse started
* while abusing drugs he contracted hepatitis C and he would like his discharge upgraded so he can use the Department of Veterans Affairs (VA) to receive medical treatment for this condition that he believes is service-connected

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 31 August 1972 for a period of 3 years.  He completed his training and was awarded military occupational specialty 64C (motor transport operator).  He served in Germany from 
21 January 1973 to 17 September 1973. 

3.  On 12 April 1974, he was convicted by a special court-martial of being AWOL from 22 January 1974 to 14 February 1974.  He was sentenced to perform extra duty for 45 days, to forfeit $25.00 pay per month for 6 months, and to be reduced to pay grade E-2.  On 22 April 1974, the convening authority approved the sentence.

4.  On 30 April 1975, charges were preferred against the applicant for being AWOL from 6 January 1975 to 3 February 1975 and from 24 February 1975 to 29 April 1975.

5.  On 14 May 1975, after consulting with counsel, the applicant submitted a request for 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.  In his request, he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:  

* he enlisted because he wanted to go to Europe and he was told the Army would be like a job, but he found out it was not like a job and he didn't like it all
* he disliked the Army very much and it led to him having a nervous breakdown and a 3-month stay in a psychiatric ward
* he went AWOL because he was tired of the Army and its ways
* he had a negative attitude toward the Army and he had no desire or intention to remain in it

6.  On 9 June 1975, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

7.  On 20 June 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an Undesirable Discharge Certificate.  He completed 2 years, 
5 months, and 16 days of total active service with 125 days of lost time.

8.  There is no evidence of record which shows he was diagnosed with drug abuse or dependency prior to his discharge.

9.  There is no evidence that shows 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 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.  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.  Although the applicant now contends he went AWOL due to his drug addiction that began while serving in the military, in 1975 he said he went AWOL because he was tired of the Army and its ways.  Nevertheless, there is no evidence and he provides no evidence that shows he was diagnosed with drug abuse or dependency prior to his discharge. 

2.  He wants his discharge upgraded so he can obtain VA medical benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 
10, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  His record of service included one special court-martial conviction, serious offenses for which a second court-martial was recommended, and 
125 days of lost time.  As a result, his record of service was not satisfactory.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20130015528





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015528



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1