IN THE CASE OF: BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20150008268 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 to a general discharge. 2. The applicant states: a. He suffered from drug and alcohol addiction. He was diagnosed while in Vietnam in 1970. He was treated as a criminal as opposed to a person with an illness. b. He was treated for his addiction at a facility at Long Binh, Vietnam. He was stationed at Bien Hoa. He signed the papers for a general discharge, completed the treatment, and was sent to an Army hospital at Fort Dix, New Jersey. c. He was released from the hospital and sent home and told that his discharge would be sent to him. The discharge never came and he was picked up as a deserter and given an undesirable discharge based on his record before Vietnam service. d. He did not run to Canada. He did serve and was promised a general discharge under honorable conditions. All the paperwork about that discharge was lost and his records are incomplete. e. He just wants justice. He has turned his life around and has been clean since 20 October 2000. 3. The applicant provides a 13 January 2015 Army Review Boards Agency letter. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records 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, and 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 June 1969. He held military occupational specialty 12A (Pioneer). 3. His DA Form 20 (Personnel Qualification Record) shows in: a. Item 31 (Foreign Service), he served in Vietnam from 21 January 1971 through 13 December 1971. b. Item 38 (Record of Assignments) while he was in Vietnam he was in Drug Rehabilitation from 1 December to 12 December 1971. c. Item 41 (Awards and Decorations) he was awarded the National Defense Service Medal, Vietnam Service Medal, and the Army Commendation Medal. 4. His DA Form 20B (Record of Court-Martial Conviction) shows he was convicted by a: a. Special court-martial on 9 April 1970 for being absent without leave (AWOL) from 3 December 1969 to 11 February 1970 and from 6 March to 11 March 1970. b. Special court-martial on 8 July 1970 for being AWOL from 15 April to 9 June 1970. c. Summary court-martial on 11 January 1971 for being AWOL from 16 December 1970 to 8 January 1971. 5. His records contain a 10 November 1971 memorandum from his company commander recommending the applicant be separated under the provisions of Army Regulation (AR) 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) for unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities. He had consulted with counsel and waived his rights. On 9 December 1971, he acknowledged he had received a complete copy of the discharge action. His DA Form 20 shows he was reassigned to the U. S. Army Medical Holding Company at Fort Dix, NJ on 13 December 1971. 6. The applicant's discharge processing documentation is not available for review. His DD Form 214 shows he was discharged on 17 July 1974 under the provisions of chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel), which superseded AR 635-212. His service was characterized as under other than honorable conditions (UOTHC). He had completed 1 year, 8 months, and 6 days of active duty service. Item 27 (Remarks) shows, in part, 1217 days of lost time. 7. On 3 November 1986, the Army Discharge Review Board denied his request for an upgrade of his discharge. 8. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. a. Chapter 10 provides, in pertinent part, 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. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate. b. Paragraph 3-7b states 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. 9. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states the ABCMR begins 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 specific facts and circumstances surrounding his discharge are not available for review. However, his DD Form 214 shows he was administratively discharged under the provisions of chapter 10, AR 635-200, in lieu of trial by court-martial with service characterized as UOTHC. 2. The evidence shows he was initially pending a discharge under the provisions of AR 635-212 for unfitness but was reassigned to Fort Dix, NJ, where he was court-martialed for being AWOL from 16 December 1970 to 8 January 1971. 3. The applicant has provided no evidence to support his request for an upgrade of his discharge or that he was treated any differently than other Soldiers under similar circumstances. 4. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. Therefore, it is presumed in this case the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. In the absence of evidence showing otherwise, it must also be presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service based on his history of repeated periods of 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 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) AR20100027085 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008268 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1