IN THE CASE OF:  	  

		BOARD DATE:  	  19 March 2015

		DOCKET NUMBER:  AR20140013604 


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 with an under other than honorable conditions (UOTHC) characterization of service to an honorable discharge (HD).

2.  The applicant states: 

   a.  Pursuant to the 27 November 1979 order of the United States District Court for the District of Columbia in Giles v. Secretary of the Army, he is entitled to an HD if a less than HD was issued on or before 27 November 1979 in an administrative proceeding.  Furthermore, he states that the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers.

   b.  He is in need of veterans' medical care.  His current characterization of service does not allow him to access to the care he desperately needs.
 
3.  The applicant provides portions of the Code of Federal Regulations, Title 32, Section 581.3(i), and his DD Form 214 (Report of Separation from Active Duty).  

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 14 June 1972, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 94B (Food Service Specialist).  

3.  On 19 July 1973, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), he received nonjudicial punishment (NJP) for failure to obey a lawful order or regulation.

4.  The applicant was pending a court-martial for the illegal use and/or possession of drugs.   However, on 31 October 1974, he requested separation for the good of the service, in lieu of a trial by court-martial.  

5.  The applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ and of the possible effects of a UOTHC discharge if a request for discharge for the good of the service in lieu of trial by court-martial were approved.  

6.  After consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

a. He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charges against him or of lesser-included offenses therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* he understood he could be discharged with a characterization of service of UOTHC and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and might 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 Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge

	b.  He indicated he would not submit a statement in his own behalf.

7.  Subsequent to a legal review, the Staff Judge Advocate stated on a DA Form 2496 (Disposition Form) that the applicant's discharge was based in whole or in part on drugs and that the proceedings were not based on evidence of drugs obtained from or as a result of a "drug inspection."  Further, it states the discharge is in accordance with the 8 February 1974 order of the United States District Judge in the Committee for GI Rights, et. al., v. Callaway, et. al., Civil Action Number 835-73.

8.  On 25 November 1974, the applicant's request was approved by the appropriate separation authority who directed issuance of an Undesirable Discharge Certificate and a characterization of service of UOTHC, and on 6 December 1974, he was discharged with his service characterized as UOTHC.   

9.  The applicant states based on the court case Giles v. Secretary of the Army, he is entitled to an honorable discharge (HD) if a less than HD was issued on or before 27 November 1979 in an administrative proceeding due to a compelled urinalysis test that he was made to take to identify his drug use.  However, there is no evidence in his Official Military Personnel File (OMPF) to show that he was forced to submit to a urinalysis test or that evidence against him was the result of a "drug inspection."

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative 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 (GD) 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 ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 

2.  The available records show the applicant received NJP for failure to obey a lawful order or regulation and was pending a court-martial for illegal drug usage and/or possession.  Therefore, the type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  A chapter 10 discharge is voluntary in lieu of a trial by court-martial.  By making that request, he forfeited the opportunity to submit matters in his defense. 

3.  Although the applicant contends in the court case Giles v. Secretary of the Army that he is entitled to an HD since the evidence was developed by or as a direct or indirect result of compelled or "forced" urinalysis testing administered for the purpose of identifying drug abusers, this is not the case.  In the aforementioned court case, the plaintiff's argument was based, in part, upon compelled evidence, in the form of a urinalysis test result obtained during the course of treatment.  Essentially, the plaintiff's argument was that he had statutory privilege against self-incrimination.  However, in the applicant's case, pursuant to a legal review, the proceeding was not based on evidence of drugs obtained from or as a result of a "drug inspection" nor was the applicant compelled to admit to the use or possession of drugs.  Therefore, the issuance of the Undesirable Discharge Certificate the applicant received was compliant with the rules and regulations at the time to include the court's decision in Giles v. Secretary of the Army.

4.  Based on the applicant's prior NJP, illegal drug use and/or possession, and his admission of guilt, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20140001770



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ABCMR Record of Proceedings (cont)                                         AR20140013604



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