IN THE CASE OF

		BOARD DATE:	    7 August 2014

		DOCKET NUMBER:  AR20130021735 


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 under other than honorable conditions discharge.

2.  The applicant states:

* his discharge is inequitable and should be upgraded to honorable and the reason should be changed to service-connected drug dependency
* his drug dependency was unrecognizable and untreated, which led to him being absent without leave (AWOL) and his subsequent discharge
* he was 18 years old and had never been out of the country when he was sent to the Republic of Vietnam
* he suffered from insomnia, fear, anxiety, and recurring thoughts of his pending death while overseas
* when he was introduced to something he was told would help him relax and sleep at night, he went for it and got hooked on drugs
* the military did not offer him an effective drug rehabilitation program
* he was sent to a hospital for 30 days of detoxification with no individual therapy or counseling prior to being shipped to his next duty station
* the separation authority was unaware of the facts warranting a more favorable discharge 

3.  He provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Orders 47-414, dated 3 September 1976
* California Investigative Consumer Reporting Agency Act
* Medical record documents
* Applicant's letter of resignation
* Two letters of support

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 12 March 1971.  He served in the Republic of Vietnam from 31 January 1972 through 26 January 1973.

3.  On 4 August 1972, while in the Republic of Vietnam, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent from his place of duty on 30 July 1972, from 0805 hours until 1830 hours.

4.  On or about 11 February 1975, discharge procedures were initiated to discharge the applicant under provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)).  In the first endorsement, the unit commander stated that while the applicant was AWOL he was tried by the St. Joseph Superior Court in the State of Indiana, on the charge of second degree burglary.  He said on that 7 October 1974 the applicant pleaded guilty and asked the court that he be treated as a drug abuser.  Further proceedings were stayed and the defendant was committed to the Indiana Department of Mental Health for examination and evaluation as to his possible qualification for treatment as a drug abuser.    

5.  On an unknown date, an assistant adjutant general at the U.S. Army Training Center Engineer at Fort Leonard Wood, MO, stated that although the applicant was pending derogatory action under the provisions of Army Regulation 635-206, the discharge action could not be taken due to the ruling by the Staff Judge Advocate that there had not been a guilty finding by the court.

6.  On or about 9 May 1975, his unit reported him as AWOL.

7.  On 28 July 1976, court-martial charges were preferred against him for being AWOL from on or about 9 May 1975 to on or about 22 July 1976.

8.  On 29 July 1976, he underwent a medical examination, in which he stated he was in good health.  He was subsequently medically cleared for separation.  His record is void of a mental health examination or any evidence that shows he suffered with drug dependency at the time of his separation.  

9.  On 4 August 1976, he consulted with counsel and he voluntarily 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.

10.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive an Undesirable Discharge Certificate and that by submitting his request he was admitting he was guilty of the charges against him.  He acknowledged he understood if he received a discharge under other than honorable conditions he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  He elected to provide a statement on his own behalf.

11.  In his statement he explained his family situation at home, to include the death of his brother and grandparents and the acquiring of a wife and a new born baby.  He said his main reason for getting out of the Army was to return to his job which he had for the past year and to take care of his family.

12.  On 20 August 1976, the appropriate authority approved his request and directed the issuance of an Undesirable Discharge Certificate.  On 7 September 1976, he was discharged accordingly.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and he received an under other than honorable conditions discharge.

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


14.  His record is void of documentation that clearly links his drug usage and/or abuse to his service in the Republic of Vietnam.  

15.  He provides supporting statements from his spouse and former supervisor, who speak highly of his dedication and dependability.  His spouse stated that he is not only a devoted family man, but a giving member of the community.  His former boss stated that he has been employed at the Brookdale Senior Living Solutions for over 7 years, and has held the positions of Executive Chef and Director of Dining Services.  He trained other employees in all phases of food production and he has been an exemplary employee.

16.  He provides his medical record documents that show he was diagnosed with chronic hepatitis.

17.  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 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 applicant contends his drug dependency influenced his behavior; however, there is no evidence that indicates he suffered from drug dependency at the time of his discharge.  In fact, based on his admission, the separation authority was unaware of the "situation."  Further, he stated he had been working at the same job for the past year prior to requesting a discharge and wanted out to take care of his family.  

2.  The evidence of record shows a medical examination was conducted prior to his discharge, at which time he stated he was in good health and he was cleared for separation.  Therefore, his contention that his drug dependency led to his indiscipline is not supported by the evidence of record.

3.  The record further shows he admitted he was guilty of being AWOL from on or about 9 May 1975 to on or about 22 July 1976.  The record also shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  He provides two supporting statements attesting to his dependability and his outstanding qualities; however, good post-service conduct alone is not a basis for upgrading a discharge.  

5.  His record of service included one instance of NJP and 144 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as 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 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)                                         AR20130021735





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ABCMR Record of Proceedings (cont)                                         AR20130021735



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