IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150014123 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ____x ___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150014123 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. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150014123 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 character of service from under other than honorable conditions (undesirable) to under honorable conditions (general). 2. The applicant states his entire service was characterized as "other than honorable" because of a mistake he made right at the end of his service. He asks that his overall service be considered instead of a lapse in judgement at the end of his service. He states he became a heroin user while in Vietnam, but prior to that point his service was honorable. He also states that he was absent without leave (AWOL) due to the stress of withdrawal, cleaning out his system, and because of anxiety. 3. The applicant provides no additional documents. 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 26 June 1969 and he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 509th Infantry, in Germany from 9 March 1970 to 13 September 1970. 3. He was honorably discharged on 6 August 1970 for immediate reenlistment the following day. 4. He was assigned to Vietnam from 11 October 1970 to 21 August 1971 and he served with the 4th Battalion, 503rd Infantry, 173rd Airborne Brigade from 20 October 1970 to 21 August 1971. 5. On 17 June 1971, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for leaving his post as a sentinel before he was regularly relieved. 6. His service record contains several Drug Rehabilitation and Urinalysis Testing Program Activity Summary Checklists and Drug Patient Periodic Narrative Summaries ranging in date from 26 October 1971 to 24 February 1972. These forms note his progress, his adjustment to duty, his assignment, and his mental health since entering the Drug Rehabilitation and Uranalysis Testing Program. They also show he was progressing well in the program and he noted he was able to adjust to his unit and able to cope with stress without using drugs. However, during the sessions from 22 to 24 February he noted that he had a transient lapse into drug use when his wife briefly left him. However, his treatment team felt he was able to cope well without using drugs with the support of his treatment team, counseling, and his wife, and his treatment team considered him a rehabilitation success. 7. On 6 September 1972, court-martial charges were preferred against the applicant for being AWOL from on or about 1 May 1972 to on or about 5 September 1972. 8. His record contains a Report of Mental Status Evaluation, dated 13 September 1972, wherein the examining official noted the applicant's behavior was normal, he was fully alert and fully oriented, his mood was level, his thinking process clear, his thought content was normal, and his memory was good. The examining official also indicated that there was no significant mental illness noted, the applicant was mentally responsible, he was able to distinguish right from wrong and adhere to the right. The examining official determined that the applicant had the mental capacity to understand and participate in board proceedings and met retention standards. 9. The applicant provided a statement in support of his request for chapter 10 discharge, dated 12 September 1972. The applicant stated he served in the Army for 3 years, attained pay grade E-4, served 1 year in Vietnam, and saw combat in the 173rd Airborne Brigade. He stated that his wife divorced him because of the Army, but he tried to do his best. He expressed his desire to leave the Army because he could no longer handle it and would appreciate a general discharge but he would accept an undesirable or bad conduct discharge. 10. On 15 September 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge or dishonorable discharge and the procedures and rights that were available to him. Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), chapter 10, for the good of the service. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He submitted statements in his own behalf. 11. In memoranda dated 15 September 1972 and 5 October 1972, the applicant's immediate and intermediate commanders recommended approval of his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, and the issuance of an Undesirable Discharge Certificate. 12. On 6 October 1972, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with issuance of an Undesirable Discharge Certificate and reduction to private/E-1. 13. The Army discharged him on 20 October 1972 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions (undesirable) character of service. He completed 1 year, 10 months, and 9 days of creditable active service during the period under review and 1 year, 1 month, and 11 days of prior active service. 14. His service record does not indicate he applied to the Army Discharge Review Board within that board's 15-year statute of limitations. REFERENCES: 1. 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 Veterans Administration 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 1-9 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. DISCUSSION: 1. The applicant voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His service record does not indicate that he made his request under coercion or duress. 2. The evidence of record shows the applicant received an honorable discharge during his prior service from 26 June 1969 to 6 August 1970. However, his service record shows he received an Article 15 and court-martial charges for being AWOL for 128 days during the period under review. 3. The evidence of record shows the applicant received mental health counseling and rehabilitation treatment following his assignment in Vietnam. During his sessions, he expressed that he was able to adjust to his unit and able to cope with stress without using drugs. 4. An under other than honorable conditions character of service was normally appropriate for a Soldier discharged under chapter 10. The evidence of record does not indicate the actions taken in his case were in error or unjust. It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014123 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014123 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2