IN THE CASE OF:  	  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140008939 


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 to a general, under honorable conditions discharge.
	
2.  The applicant states that he served in military occupational specialty (MOS) 91A (Medical Corpsman) at the 97th General Hospital in Frankfurt, Germany.

   a.  He states there were bombings in the area of the hospital, he was treating the injured all the time, and the situation was very scary.  During this period, he was told that he was in the Army to serve those who were injured.

   b.  He was young, without mentorship, afraid of being killed, and he strayed off course.  He adds that drugs were very accessible during the period of his military service.

   c.  He concludes that he is now homeless and programs have failed him since he was discharged from the Army.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  Counsel states it has been over 40 years since the applicant's transgressions.  He has paid his debt to society and is now approaching his senior years.

3.  Counsel provides no additional documentary 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 enlisted in the Regular Army on 8 September 1971.  At the time he was 17 years of age.  Upon completion of training he was awarded MOS 91A.
He was promoted to private first class (PFC)/pay grade E-3 on 21 January 1972.

3.  On 11 February 1972, he deployed overseas to Germany and was assigned as a litter bearer (MOS 91A) in Medical Company, 97th General Hospital.

4.  He accepted nonjudicial punishment (NJP) on four occasions, as follows –

* on 13 March 1972, for reporting late for duty (three specifications)
* on 25 April 1972, for violating unit standing operating procedures by failing to keep his room to the neatness and cleanliness standards
* on 12 May 1972, for failing to report for extra duty that was his punishment under NJP (four specifications)
* on 19 March 1973, for failing to report at the time prescribed to his appointed place of duty (three specifications)

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), Interim Report, dated 18 May 1973, shows the applicant was previously Flagged on 10 April 1973 after having received NJP.  It also shows he was placed in 
pre-trial confinement on 12 May 1973 for violation of Article 86, Uniform Code of Military Justice (UCMJ), after having been absent without leave (AWOL) and in wrongful possession of narcotics and dangerous drugs.  If further shows the applicant was pending court-martial action.
6.  A review of the applicant's military personnel record failed to reveal a DD Form 458 (Charge Sheet) or a copy of the applicant's request for 
discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). 

7.  Special orders (SO) issued by Headquarters, United States Forces Support District, Hessen, Frankfurt Personnel Service Support Company (Provisional), pertaining to the applicant show –

* SO Number 212, paragraph 36, dated 31 July 1973, reduced him to private (E-1) effective 25 July 1973; the reason for his reduction was "approved discharge from the service with an Undesirable Discharge"
* SO Number 212, paragraph 15, dated 31 July 1973, reassigned him to the U.S. Army Transfer Station, Fort Dix, NJ, on 2 August 1973, for separation processing; the authority was Army Regulation 635-200, Chapter 10, and Headquarters, V Corps, 4th Indorsement, dated 25 July 1973, to letter, subject:  Request for Discharge for the Good of the Service

8.  Headquarters, U.S. Army Personnel Center, Fort Dix, NJ, SO Number 215, dated 3 August 1973, discharged the applicant, effective 3 August 1973, with an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 3 August 1973 under the provisions of Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.  He completed 1 year, 10 months, and 26 days of net active service during this period.

10.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review 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.

	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 Veterans Administration (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.  Chapter 3 provides in:

    	(1)  paragraph 3-7a 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; and

    	(2)  paragraph 3-7b 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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was young and without mentorship, he experienced stress and anxiety as a result of military duties, and drugs were very accessible during the period of his military service.

2.  The applicant successfully completed training, was awarded MOS 91A, and was promoted to PFC (E-3).  Thus, his contention that he was immature and without mentorship is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's contention that he experienced stress and anxiety as a result of his military duties is acknowledged.  It is noted that the applicant was trained and then served in MOS 91A at the 97th General Hospital.  However, there is no evidence of record that shows he sought medical/mental health care for the conditions that he presents to this Board as a basis for his acts of indiscipline and misconduct.

4.  Despite the applicant's contention that "drugs were very accessible during the period of his military service," this Board does not construe that statement to mean that controlled pharmaceuticals were made readily available to the applicant within the military hospital at which he performed his duties.  In fact, the evidence of record shows the applicant was AWOL when he was in wrongful possession of narcotics and dangerous drugs.  Thus, the fact that he went AWOL and wrongfully possessed narcotics and dangerous drugs were choices that he made of his own free will.

5.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed is presumed to have been, and still is, appropriate.

6.  During the period of service under review, the evidence of record shows the applicant accepted NJP on four occasions, was AWOL, he wrongfully possessed narcotics and dangerous drugs, he was placed in pre-trial confinement, he was reduced to private (E-1) prior to his discharge, and he failed to complete his 
2-year enlistment obligation.  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits and other government programs.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.


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)                                         AR20140008939



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ABCMR Record of Proceedings (cont)                                         AR20140008939



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