IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140010697 


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, in effect, an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states:

* his first sergeant did not like him and made a scapegoat of him
* he did not commit any crime
* he was already pending discharge for drug abuse
* the allegation that he stole from a fellow Soldier was used to speed up his discharge from the Army
* he was trying to help the other Soldier who was drunk at the time, but the chain of command convinced him to claim attempted robbery
* the two men were playing dice and the applicant won the money fairly
* he has suffered long enough for this injustice

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.  On 12 May 1972, the applicant was inducted into the Army of the United States.

3.  On 16 October 1972, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave from 13 October 1972 until on or about 16 October 1972.

4.  On 19 September 1973, he received NJP for failing to go to his appointed place of duty at the prescribed time on 17 September 1973 and failing to obey a lawful order from a superior commissioned officer on 19 September 1973.

5.  On 4 October 1973, he received NJP for failing to go to his appointed place of duty at the prescribed time on both 26 and 27 September 1973 and for attempting to steal money and other valuables from another Soldier on 29 September 1973.

6.  His records contain seven counseling statements given by his section chief, company commander, and first sergeant between 3 July 1973 and 25 October 1973 regarding his failure to report to duty on time, drug dependence, conduct and job performance, and failure to show up for a scheduled urinalysis.

7.  An Army Europe Form 113-7-R (Alcohol and Drug Abuse Prevention and Control Program Progress Report), dated 30 October 1973, shows he was mandatorily referred to the Alcohol and Drug Abuse Prevention and Control Program on 26 July 1973 for counseling and rehabilitation for morphine abuse.  The document states he did not show a desire for rehabilitation, there was no change in his drug habits, and he appeared to have made a superficial effort toward the rehabilitation goals which was indicated by positive urine tests throughout the program and very poor job performance and conduct.  The evaluation determined he was a hazard to himself, he obviously resisted all attempts to be rehabilitated, and rehabilitation would not produce the quality Soldier acceptable to the Army.  He was released from the program on 24 October 1973.

8.  On 31 October 1973, he underwent a mental status evaluation which found him to have no mental illness and to have the mental capacity to understand and participate in board proceedings.

9.  On 2 November 1973, his commander notified him that he had initiated action to separate him from the service for unfitness due to drug abuse pursuant to the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5.  He acknowledged receipt of the notification and submitted his election of rights on 5 November 1973 in which he acknowledged he had been advised by counsel of the basis for the contemplated separation action for unfitness and waived both consideration of his case by a board of officers and representation by counsel.  He did not submit statements in his own behalf and acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

10.  On 7 November 1973, his battalion commander and his group commander recommended approval of the separation action and waiver of further rehabilitative efforts on 9 November 1973.  On 15 November 1973, the court-martial convening authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, due to unfitness with issuance of a general discharge under honorable conditions.

11.  He was discharged accordingly on 28 December 1973.  He completed a total of 1 year, 7 months, and 17 days of creditable active military service.  No lost time is annotated on his DD Form 214 (Report of Separation from Active Duty).

12.  The applicant's record is void of any evidence and he did not provide any evidence showing he was mistreated by his first sergeant or unfairly accused of wrongdoing.

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

14.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.

	a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered and determined to be without merit.

2.  His record reveals a history of drug abuse and a disciplinary history that includes numerous infractions resulting in NJP on two occasions.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unfitness.  His disciplinary history and repeated drug abuse demonstrated a trend of misconduct and unfitness and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of his service clearly did not rise to the level of conduct and performance of duty commensurate with a fully honorable discharge.

5.  In view of the foregoing, there is no basis for upgrading the applicant's 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 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)                                         AR20140010697



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ABCMR Record of Proceedings (cont)                                         AR20140010697



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