IN THE CASE OF:  	  

		BOARD DATE:  4 December 2014	  

		DOCKET NUMBER:  AR20140006984 


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 upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

* he was told his discharge would change to general under honorable conditions after 6 months
* he was a teenager with much to learn at the time
* he never received substance abuse treatment
* he requires medical and financial assistance for problems that began with his service in Vietnam

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 10 November 1969 at the age of 17.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  The applicant's complete military records are not available for review.  His available records show he served in Vietnam from 12 February 1971 through on or about 11 October 1971.  Charges were preferred against him on 1 October 1971 for throwing a chlorobenzalmalononitrile gas (commonly known as tear gas) grenade into the presence of six commissioned officers.

4.  U.S. Army Personnel Center, Fort Lewis, Special Orders Number 285, dated 12 October 1971, discharged the applicant under other than honorable conditions for the good of the service by authority of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) effective 12 October 1971.  His DD Form 214 shows he was discharged on 12 October 1971 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He completed 1 year, 11 months, and 3 days of total active service and accrued 1 day of lost time.

5.  The applicant petitioned the Army Discharge Review Board for an upgrade of his discharge and his appeal was denied on 7 October 1974.  While the original discharge packet is not available for review, Office of the Secretary of the Army (OSA) Form 62A (Army Discharge Review Board Brief), dated 3 October 1974, states:

* physician's remarks note drug history
* company, battalion, and division commanders all recommended an undesirable discharge
* applicant had charges pending against him for the possession of heroin
* statements from a sergeant first class and a chief warrant officer two reflect the applicant was counseled numerous times for unsatisfactory conduct on and off duty
* court-martial charges and specifications reflect the applicant was charged with possession of 19.6 grams of heroin on 4 July 1971 at Chu Lai Combat Base, Vietnam
* applicant was recommended for trial by a court-martial with bad conduct discharge authority
* applicant requested discharge under the provisions of chapter 10 in lieu of general court-martial

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	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.  The applicant's request for an upgrade of his discharge was carefully considered; however, the evidence is insufficient to support his request.

2.  His records reflect he was charged with the commission of multiple offenses punishable under the Uniform Code of Military Justice with a punitive discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  The information contained in the OSA Form 62A corroborates the presumption of regularity in this case.

4.  Records show the applicant was 19 years of age at the time of his offenses.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service and there is no evidence indicating he requested treatment for substance abuse.

5.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the Department of Veterans Affairs.

7.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.

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 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)                                         AR20140006984



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ABCMR Record of Proceedings (cont)                                         AR20140006984



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