RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080000834 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he could not perform his duties because he was on the medication (Thorazine).

3.  The applicant provides no additional documents in support of his application.  

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 22 October 1969 for a period of two years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  He was advanced to private, E-2 on 23 February 1970.  He was assigned to Germany on 3 April 1970 as an automatic rifleman.  

3.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows as a period of lost time 5 February 1970 through 7 February 1970.  This period of lost time is shown on the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  There is no record of nonjudicial punishment (NJP) for this period of lost time.  

4.  On 15 June 1970, the applicant accepted NJP under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully sitting down on his post while he was posted as a sentinel on Motor Pool Guard, a walking post.  His punishment consisted of 14 days extra duty and 14 days restriction to the company area.  


5.  On 15 December 1970, the applicant was convicted by a summary 
court-martial of failing to go to his appointed place of duty; behaving himself with disrespect toward his superior commissioned officer; and wrongfully appearing at the 2nd Battalion, 36th Infantry, Mess Hall without his proper field jacket.  He was sentenced to a reduction to private, E-1 and confinement at hard labor for 30 days.  

6.  On 12 March 1971, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from his superior noncommissioned officer.  His punishment was a forfeiture of $22.00 for one month, 14 days restriction to the company area, and 14 days extra duty.  

7.  The applicant received medical treatment on 12 April 1971 for complaints of being nervous.  The examining physician indicated that the applicant did not have any disease other than mild anxiety and he gave the applicant 10 milligrams of Thorazine for 2 days.  

8.  On 18 May 1971, charges were preferred against the applicant for being absent from his place of duty on 27 April 1971; behaving with disrespect toward his superior commissioned officer; willfully disobeying a lawful command from his superior commissioned officer; and willfully disobeying a lawful order from his superior noncommissioned officer on two separate occasions.  

9.  On 20 May 1971, additional charges were preferred against the applicant for disobeying a lawful command from his superior commissioned officer and two specifications of disobeying a lawful order from his superior noncommissioned officer.  

10.  On 28 May 1971, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs if an undesirable discharge was issued.  He did not submit statements in his own behalf.  

11.  The applicant underwent a separation physical on 17 June 1971.  On his Report of Medical Examination, the applicant indicated he was in the best of health at that time.  The examining physician indicated that the applicant’s medical records were reviewed and there was no significant history revealed.  

12.  On 22 June 1971, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

13.  On 29 June 1971, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year and 7 months of active military service with 38 days of lost time due to AWOL and confinement.

14.  On 27 July 1978, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

15.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

16.  Army Regulation 635-200, 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.  

17.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant's record of service shows he received two Article 15s and one summary court-martial.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable discharge.

3.  The applicant’s statements are noted.  However, there is no evidence of record which substantiates his claim that he could not perform his duties because he was on Thorazine.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

XX______  XX_____  XX______  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.




                             XX_______
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000834


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508