IN THE CASE OF:	  

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018718 


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.

2.  The applicant states he was addicted to drugs and alcohol at the time of his discharge.  He spent 25 years on skid row in downtown Los Angeles, CA, battling his addictions.  He was a good Soldier; however, his addictions would not allow him to function normally.

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 was inducted into the Army of the United States on                  24 November 1970.  
3.  The evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 10 December 1971, for violating a lawful general regulation by being off the compound without having an overnight pass
* 29 February 1972, for failing to go at the time prescribed to his appointed place of duty

4.  His record contains a Standard Form 88 (Report of Medical Examination), dated 24 April 1972, which was completed prior to his discharge.  The applicant noted that he was in good health and a physician noted the applicant was qualified for separation.  

5.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged for the good of the service in lieu of trial by court-martial on      25 April 1972, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an under other than honorable conditions character of service.  The DD Form 214 he was issued confirms he completed a total of 1 year, 5 months, and 2 days of creditable active service.

6.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for alcohol or drug abuse while serving in the Army.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 Veterans Administration 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 an individual who was discharged for the good of the Service.

9.  Army Regulation 635-200, 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.

10.  Army Regulation 635-200, 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's request to upgrade his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for alcohol or drug abuse while serving in the Army.

4.  The applicant's discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The evidence shows he accepted NJP under the provisions of Article 15 of the UCMJ on two separate occasions. Therefore, based on his record of indiscipline, the applicant's service does not merit an upgrade to his discharge to either 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 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)                                         AR20130018718



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ABCMR Record of Proceedings (cont)                                         AR20130018718



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