RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 March 2008
      DOCKET NUMBER:  AR20070016966


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Yvonne Foskey                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Jerome L. Pionk               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his undesirable
discharge and change to the narrative reason for his separation to
Convenience of the Government.

2.  The applicant states, in effect, that he was diagnosed with a
Personality Disorder, which was a major contributor to the acts of
misconduct while in the military.  He further states that based on the
Personality Disorder diagnosis, he believes his discharge should have been
based on his medical condition, which existed prior to his entering
service.  He states he now requests his undesirable discharge be upgraded
so that he may receive veterans benefits that he has unjustly been denied.


3.  The applicant provides the following documents in support of his
application:  Report of Mental Status Evaluation (DA Form 3822-R), dated 21
February 1974; Separation Document (DD Form 214); Niagara County Veterans
Service Agency Letter, dated 19 October 2007; and three Third-Party
Statements.

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’s record shows he enlisted into the Regular Army and
entered active duty on 29 December 1972.  He was trained in and awarded
military occupational specialty (MOS) 12A (Pioneer), and the highest rank
he attained while serving on active duty was private/E-2 (PV2).  His record
shows that during his active duty tenure, he earned the National Defense
Service Medal, Armed Forces Expeditionary Medal (Korea), Sharpshooter
Marksmanship Qualification Badge with Rifle Bar, and the Expert
Marksmanship Qualification Badge with Grenade Bar.  His record documents no
acts of valor, significant achievement or service warranting special
recognition.
3.  On 4 April 1973, the applicant accepted non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for being absent without leave (AWOL) from on or about 17 March 1973
until on or about 20 March 1973.  His punishment for this offense was a
forfeiture of $71.00, and 7 days restriction and extra duty.

4.  On 24 May 1973, the applicant accepted NJP for failure to be at his
appointed place of duty at the prescribed time.  His punishment for this
offense was a forfeiture of $25.00, and 7 days restriction and extra duty.

5.  On 4 October 1973, the applicant accepted NJP for disobeying a written
lawful order by a Commanding General.  His punishment for this offense was
a forfeiture of $80.00 and reduction in grade to private/E-1 (suspended),
and
14 days restriction and extra duty.

6.  On 30 October 1973, the applicant accepted NJP for possessing marijuana
and for being AWOL from 7 through 10 October 1973. His punishment for these
offenses was a forfeiture of $50.00 for two months and 25 days restriction
and extra duty.

7.  On 21 January 1974, the applicant accepted NJP for leaving his
appointed place of duty without authority and failure to be at his
appointed place of duty at the time prescribed.  His punishment for these
offenses was a forfeiture of $50.00 for two months, and 25 days restriction
and extra duty.

8.  On 22 January 1974, the unit commander prepared a Certificate of
Unsuitability for Reenlistment based on the applicant's unsatisfactory
conduct and efficiency ratings. The reason cited for the action was the
applicant's record of NJP and his being orally reprimanded for ration
control violation, AWOL, wrongful possession of a controlled substance, and
use of illegitimate pass.  The appropriate authority approved the Bar to
Reenlistment.  The applicant acknowledged receipt of this action and
elected neither to appeal the action nor to submit a statement in his own
behalf.

9.  On 15 March 1974, a Report of Medical Examination (SF 88) was completed
on the applicant in conjunction with his separation processing.  This
document shows the applicant had no disqualifying medical conditions and
that he was qualified for separation.

10.  The applicant’s Military Personnel Record Jacket (MPRJ) is void of a
complete separation packet containing the specific facts and circumstances
surrounding his separation processing.  However, the record does contain a
DD Form 214 that shows on 15 March 1974, the applicant was separated under
the provisions of Chapter 10, Army Regulation 635-200, for the good of the
service in lieu of trial by court-martial, and that he received an
undesirable discharge. It further shows that at the time, he had completed
a total of 1 year,
2 months, and 9 days of creditable active military service and that he had
accrued 8 days of time lost due to AWOL.

11.  The applicant provides a copy of a Report of Psychiatric Evaluation,
which documents an evaluation completed on 20 and 21 February 1974.  It
shows the applicant underwent a mental health evaluation and that the
examining Psychiatrist diagnosed him as having an Anti-Social Personality.
The physician stated that the applicant showed general inadaptability to
both military and civilian environments, and that he had shown anti-social
patterns since early adolescence, which became more evident during his tour
in Korea.  He also stated that the applicant had severe character and
behavior disorder with no violent tendencies, but which were not amendable
for further rehabilitative efforts. He further confirmed the applicant had
no significant mental illness, and that he was able to distinguish right
from wrong, and to adhere to the right.  He finally concluded the applicant
had no disqualifying mental or physical defects sufficient to warrant his
disposition through medial channels, and he recommended the applicant be
administratively separated.

12.  The applicant also provides a letter from a Veterans Service Agency,
Director, dated 19 October 2007.  This official states that based on the
applicant's diagnosis of antisocial personality, he contends the applicant
should have been separated with an honorable discharge and been assigned a
separation program number (SPN) of 264 (Unsuitability-Character and
Behavior Disorder) and a reentry (RE) code of 3.  The applicant also
provides third-party statements from friends and neighbors, who indicate
they have known the applicant for several years and attest that he is a
wonderful, trustworthy, and helpful person.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for a change to his discharge within the
ADRB's
15-year statute of limitations

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part that a member who has committed an offense or offenses
for which the authorized
punishment includes a punitive discharge may at any time after the charges
have been preferred, submit a request for discharge for the good of the
service in lieu of trial by court-martial.  At the time, an undesirable
discharge was normally considered appropriate for members separated under
this provision of the regulation.  However, the regulation does allow the
issuance of a general discharge (GD), under honorable conditions discharge;
or an honorable discharge (HD), if the separation authority determines it
is warranted based on the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust and the
supporting documents he provided were carefully considered.  However, there
is insufficient evidence to support this claim.  The evidence of record
confirms the applicant underwent a complete separation physical
examination, which included a mental status examination, and that he was
properly cleared for separation by competent medical authority.  The
examining Psychiatrist who completed the applicant's mental status
evaluation confirmed the applicant had no significant mental illness that
warranted his separation processing through medical channels, and that the
applicant was able to distinguish right from wrong and to adhere to the
right.

2.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by court-martial.  In doing so, he would have
admitted guilt to the stipulated offense(s) under the UCMJ that authorized
the imposition of a punitive discharge.

3.  By regulation, an undesirable discharge is normally appropriate for
members separated under the provisions of chapter 10, Army Regulation 635-
200, for the good of the service in lieu of trial by court-martial.
However, the separation authority may direct a GD or HD be issued if such
is merited by the Soldier's overall record during the current enlistment.
Although the applicant's post-service conduct, as attested to in the
supporting third-party statements is noteworthy, this factor alone is not
sufficiently mitigating to support granting the requested relief.
4.  In this case, the applicant's record is void of any acts of valor or
significant achievement that would have warranted a GD or HD being issued
by the separation authority at the time, or that supports an upgrade at
this time.

5.  The applicant’s record is void of a separation packet containing the
specific facts and circumstances surrounding his discharge processing.
However, it does contain a properly constituted DD Form 214 that identifies
the reason and characterization of his discharge.  Therefore, Government
regularity in the discharge process is presumed.  Absent information and
evidence to the contrary, it is concluded that all requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA___  __WDP _  __JLP___  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.




                                  _____James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070016966                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1974/03/15                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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