BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130017421 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to honorable or general, under honorable conditions.

2.  The applicant states in a 6-page notarized affidavit, summarized below, his reasons for believing why the characterization of his discharge is unjust.

	a.  He has been incarcerated three times and was incarcerated at the time of this application.

	b.  He is a drug addict.  His story is not that unusual for the times.  He entered the Army fresh out of high school.  At the time, he believed he would soon have a child who would need his financial support.  He was excited about being away from home for the first time and became overwhelmed by the new adventure.  He was not as cautious or wary as he should have been.

	c.  He joined a circle of friends who were using drugs.  He thought he was "fitting in" and could handle it.  He was wrong.  He liked the Army, the camaraderie, the benefits, and the opportunity to progress.  But, he was in a situation that was not addressed by anyone in basic training.  He soon became a fully-developed drug addict.

	d.  He knew if he confessed, he would be court-martialed and dishonorably discharged.  He contends that in today's Army, he would be encouraged to confess and would be offered rehabilitation without penalty.  In the 1970's there was "zero tolerance."
	e.  He was home on leave when he committed a robbery to support his drug habit.  He went to prison and received a UOTHC discharge.

	f.  It has taken him many years to admit to his addiction.  He cannot seek treatment from the Department of Veterans Affairs (VA) because of his UOTHC discharge.

	g.  He contends that the decision to discharge him with a UOTHC discharge was based on incomplete or unknown facts regarding the source and cause of his addiction and the ability to rehabilitate a drug user.  Therefore, he prays for a second chance.  He is now clean and sober and finally capable of making a reasonable decision.  He wishes to continue his treatment as an outpatient with the VA.

3.  The applicant provides no additional documentation.

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 14 June 1977, the applicant, at 17 years and 10 months of age, enlisted in the Regular Army.  He completed his initial training as a stock control specialist and was assigned for duty at Fort Bragg, NC.

3.  On 14 June 1978, the applicant was advanced to private first class, pay grade E-3.

4.  On or about 6 February 1979, the applicant departed Fort Bragg, NC for duty in the Federal Republic of Germany.



5.  On 25 February 1979, the applicant was absent without leave (AWOL).

6.  On 28 May 1979, the applicant was tried in Hamilton County Common Pleas Court in Ohio for robbery.  He was convicted and sentenced to the Ohio State Reformatory for a period of 2 to 15 years.

7.  The applicant's company commander sent the following notices to the applicant concerning his proposed discharge and requesting his acknowledgement and election of rights:

	a.  9 July 1979: Returned on or about 12 July 1979 as unclaimed.

	b.  20 July 1979: Returned on or about 27 July 1979, addressee unknown.

	c.  7 September 1979: Notice was delivered on 13 September 1979, no response received.

	d.  9 October 1979: Notice was delivered on 16 October 1979, no response received.

8.  On 13 November 1979, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, due to his civilian conviction.

9.  On 30 November 1979, the appropriate discharge authority determined that inasmuch as the applicant did not acknowledge the notification of the proposed discharge and did not exercise his rights to be represented by military counsel, the request for discharge as recommended was approved.  It was further directed that the applicant be issued a DD Form 794A (UOTHC Discharge Certificate).  On 28 December 1979, the applicant was accordingly discharged.  He had completed 1 year, 10 months, and 12 days of creditable active duty service.

10.  There is no indication that the applicant 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.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include convictions by 


civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

12.  Army Regulation 635-200, paragraph 3-7b, states 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 record shows the applicant was convicted in a civilian court.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

4.  There is no evidence of record showing that any of his misconduct or criminal acts were the result of his youth or due to an addiction to drugs.  Further, he could have referred himself for treatment even at that time.

5.  The applicant's desire to obtain VA benefits is not justification to upgrade his discharge.

6.  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)                                         AR20130017421





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ABCMR Record of Proceedings (cont)                                         AR20130017421



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