IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150004992 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 that he enlisted in the U.S. Army in October 1970 when he was 18 years of age. He had two older brothers who were stationed overseas; one in Vietnam and one in Thailand. He volunteered to serve in Vietnam and was told that he could not deploy while his brothers were deployed. He adds that his mother sought the assistance of her U.S. Senator to prevent him from being put on orders to Vietnam. a. He states that he had a bad marriage and other personal problems that caused him to be depressed. He experienced a separation from his wife and child in June 1972. He turned to using drugs (heroin) and things got worse. b. He states that there are several errors on his separation document. He was charged with being absent without leave (AWOL) from 6 November 1972 to 24 November 1972; however, at the time, he was confined in the stockade. He states that he reported to Fort Meade, MD, on 17 November 1972. c. He was on drugs when he was AWOL from his unit at Fort Bliss, TX. He states that there is no mention of his heroin addiction during this period. He was hospitalized at Fort Bliss and he was not offered any form of rehabilitation. He adds that he does not have copies of his military medical treatment records. d. He states that he has previously petitioned for a change in his discharge, but his application was denied. He has been drug-free for over 42 years. 3. The applicant provides copies of a – * DA Form 19-32 (Military Police Report (MPR)) * DD Form 458 (Charge Sheet), pages 1 and 2 * AHHMA-PMO Form 10 (Notice of Restriction from Installation) * DA Form 20 (Enlisted Qualification Record), page 4 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 (RA) on 28 October 1968 for a period of 3 years. He was awarded military occupational specialty (MOS) 63F (Recovery Specialist). A review of his military personnel records failed to reveal any evidence that he was assigned overseas. 3. On 6 April 1971, at Headquarters, School Brigade, U.S. Army Ordnance Center and School, Aberdeen Proving Ground, MD, the applicant was convicted by a summary court-martial of being AWOL (two specifications) from 1 March 1971 to 5 March 1971 and from 10 March 1971 to 18 March 1971. His sentence consisted of confinement at hard labor for 30 days, forfeiture of $60.00 pay per month for 1 month, and reduction to private (E-1). 4. On 24 September 1971, at Headquarters, 1st Battalion, 62nd Air Defense Artillery, Fort Bliss, TX, the applicant was convicted by a summary court-martial of being AWOL from 13 September 1971 to 21 September 1971. His sentence consisted of confinement at hard labor for 30 days (suspended for 5 months), forfeiture of $50.00 pay per month for 1 month, and reduction to private (E-1). 5. Through a series of promotions and reductions, the applicant last attained his highest rank of private first class (PFC)/pay grade E-3 on 10 May 1972. 6. U.S. Army Personnel Control Facility (PCF), Fort George, G. Meade (FGGM), MD, Special Orders Number 228, dated 24 November 1972, show the applicant was – * hospitalized at Valley Forge General Hospital (VFGH), Phoenixville, PA, on 3 November 1972 * released on 17 November 1972 and returned to military control at the U.S. Naval Hospital (USNH), Philadelphia, PA, effective 17 November 1972 * attached to the Medical Hold Company, VFGH, effective 17 November 1972 * released from attachment, effective 17 November 1972 * assigned to the PCF, FGGM, MD; reporting date of 17 November 1972 * confined in the Post Stockade on 22 November 1972 7. A DD Form 458 shows, on 28 November 1972, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (three specifications), for being AWOL from – * 20 June 1972 to 9 July 1972 * 17 July 1972 to 22 August 1972 * 17 November 1972 to 24 November 1972 8. On 30 November 1972, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be – * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions. d. He was also advised that he could submit statements in his own behalf and he elected not to submit any statements. e. The applicant and his counsel placed their signatures on the document. 9. His chain of command recommended approval of his request for discharge with the issuance of an undesirable discharge. 10. On 21 December 1972, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that he be issued an Undesirable Discharge Certificate. 11 A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty this period on 28 October 1970 and he was discharged on 21 December 1972 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. He had completed 1 year and 10 months of net active service and he had 114 days of time lost. 12. On 3 June 1986, the Army Discharge Review Board (ADRB) determined that the applicant was properly discharged. Accordingly, the ADRB denied the applicant's request for an upgrade of his discharge. 13. A review of the applicant's military personnel records failed to reveal any evidence that the applicant admitted to, or was found to have, a substance abuse problem. 14. In support of his application the applicant provides the following documents. a. DA Form 19-32, dated 24 November 1972, that shows the applicant's status was verified as – * previous offenses, 6 November 1972, Philadelphia MPR #6046-72-5146 * AWOL on 17 November 1972 * dropped from the rolls on 17 November 1972 * surrendered to the AWOL Section, Provost Marshal Office, FGGM, on 24 November 1972 b. AHHMA-PMO Form 10, dated 21 December 1972, that directed the applicant to leave the premises of the FGGM, MD Military Reservation, and not to return, except by written permission of the Post Commander. c. Page 4 of a DA Form 20 that shows in item 42 (Remarks) the handwritten note, "At the time other than July of 1972, I was receiving rank and promotions to the rank of PFC, which you will note I kept until my discharge in December 1972." 15. Army Regulation 635-200, in effect at the time, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Chapter  3, 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. Chapter 3, 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 that his discharge should be upgraded because he was experiencing personal and family problems, he was addicted to drugs and not offered rehabilitation for his problem, and he was erroneously charged with being AWOL from 6 November 1972 to 24 November 1972. 2. There is no evidence of record that shows the applicant admitted to, or was found to have, a substance abuse problem during the period of service under review. It is noted that the evidence of record shows the applicant was hospitalized on 3 November 1972 at VFGH, released from the hospital on 17 November, and returned to military control at the USNH on 17 November 1972. Thus, it is reasonable to conclude that, if he had a drug problem, he could have requested treatment of his drug problem during the period of time he was hospitalized. However, there is no evidence of record that shows he did so. Thus, his contention that he was not offered rehabilitation appears disingenuous. 3. Records show that court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86 (three specifications), for being AWOL from – * 20 June 1972 to 9 July 1972 * 17 July 1972 to 22 August 1972 * 17 November 1972 to 24 November 1972 4. The evidence of record shows that by voluntarily submitting his request for discharge for the good of the service in lieu of trial by court-martial he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained. Thus, his contention now that he was not AWOL during the period 17 November 1972 to 24 November 1972, and therefore he is not guilty, is moot because he admitted being guilty to the charge thereby waiving his right to contest the charge at a trial by court-martial. 5. The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, his separation and the characterization of his service were appropriate and equitable. 6. The evidence of record shows that during the period of service under review the applicant was convicted by two summary courts-martial and he had 114 days (i.e., nearly 4 months) of time lost. Moreover, he completed only 1 year and 10 months of his 3-year active duty obligation. Thus, the applicant's record of service during the period under review clearly 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, under honorable conditions discharge. 7. Therefore, in view of the foregoing, there is an insufficient basis for granting the requested relief. 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) AR20150004992 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004992 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1