IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008120 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 (UOTHC) discharge to a general discharge (GD). 2. The applicant states: a. He spent 9 months out the year in the field when he was stationed in Germany. He was encouraged to do whatever it took to stay alert. There was a liquid version of speed that could be purchased over the counter. He used it to stay awake and ultimately became addicted to it. b. He spoke with a chaplain when he was sent to Fort Ord, California; however, he was not offered rehabilitation for his addiction. He was given the option of rank reduction, being sent to the brig, or an administrative discharge. He took the easy way and accepted the administrative discharge because he was young. c. His discharge came back to haunt him years later. He was discharged under provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and his service was characterized as UOTHC. His addiction was the cause of a failed marriage, lost jobs, homelessness, and financial ruin. He was finally enrolled in a 90 day treatment sponsored by the Department of Veteran Affairs. d. He still has struggles but he has learned a lot and has done pretty well. He is proud of his successful children. He has a child who has been serving in the U. S. Coast Guard for the past 9 years and he also has two beautiful grandchildren. He is very motivated to get his life back on track. An upgrade of his discharge would be an incredible step in the right direction. 3. The applicant provides a letter from Disabled American Veterans, a service organization. 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 30 January 1978. After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman). 3. His record contains a DA Form 2-1 (Personnel Qualification Record). Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) shows he was in an absent without leave (AWOL) status for the period 27 December 1978 to 30 January 1979. 4. The evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 6 December 1977, for violating a lawful order * 5 February 1979, for being disrespectful 5. A DD Form 458 (Charge Sheet), dated 22 January 1979, shows he was charged with being AWOL. 6. His discharge packet is not available for review; however, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 16 March 1979 after completing 1 year and 12 days of net active military service this period, with 35 days of lost time due to being AWOL. He was discharged under the provisions of chapter 10, Army Regulation 635-200. It also shows his service was characterized as UOTHC. 7. His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for drug addiction while serving in the Army. 8. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. 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 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 (HD) 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 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. 10. 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 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 complete facts and circumstances surrounding the applicant's discharge are not available for review; however, his records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ. 2. To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial. 3. Even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. The evidence shows he accepted NJP on two occasions and was AWOL with 35 days lost time. 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) AR20150008120 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008120 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1