IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006646 


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 that his discharge under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that he was suffering from the effects of his father’s murder and the trial that occurred just before he went into the service.  He contends that he was in a deep depression when he joined the Army, that after serving six months he realized that he was still suffering from the effects of his father’s murder and trial, and that he had Post Traumatic Stress Disorder and did not know it.  He claims that he went absent without leave (AWOL) to be near his mother who was also suffering from the same depression and that his grandfather died of cancer which further caused him to spiral into depression.  He states that he went AWOL again to be with his mother, that he turned himself in and told his unit that he was depressed, and that his first sergeant was not sympathetic.  He states he went AWOL a third time and ended up talking to a Deputy Sheriff about his issues.  The Deputy Sheriff told him to seek counseling but he contends that in 1978 there was no counseling available for military service members or veterans.

3.  The applicant states that since his discharge he has turned himself into a productive person who is clean and sober, and a family man who has a great job and many supporters.  He points out that he has reacted to several fire events where he saved lives, that he feels the events prior to and in the service were out of his control, and that the Army was not able at that time to deal with Soldiers who had mental health issues.    

4.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); six newspaper articles pertaining to his father’s murder and the trial; and 25 character reference letters.  

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 father died on or about 10 August 1972. 

3.  On 20 July 1977, the applicant underwent an enlistment physical examination and was found qualified for enlistment with a physical profile of 111121.  He reported that he was in “Good” health and taking no medications in item 8 (Statement of Examinee’s Present Health and Medications Currently Used) on his Standard Form 93 (Report of Medical History), dated 20 July 1977.  In item 11 (Have you ever had or have you now) on this Standard Form 93 the applicant marked “No” to Depression or excessive worry.  

4.  The applicant enlisted on 9 August 1977 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 95B (military police). 

5.  The applicant went AWOL on 5 September 1978 and returned to military control on 21 September 1978.  He went AWOL on 25 September 1978 and returned to military control on 28 November 1978.  On 29 November 1978, charges were preferred against the applicant for the AWOL periods.  

6.  On 1 December 1978, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.  He reported that he was in “Good” health in item 8 on his Standard Form 93, dated 1 December 1978.  In item 11 (Have you ever had or have you now) on this Standard Form 93 the applicant marked “No” to Depression or excessive worry.  
7.  On 4 December 1978, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

8.  On 20 December 1978, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 28 December 1978 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service.  He had served a total of
1 year and 2 months of active service with 80 days of lost time due to AWOL.

10.  The applicant provided 25 character reference letters from friends and family members attesting to his good character.  

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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, 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 and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  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.

15.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record does not support the applicant’s contentions that he was in a deep depression when he joined the Army and while he was in the Army.  His father died in 1972.  On 20 July 1977 and on 1 December 1978, he reported that he was in “Good” health and in item 11 (Have you ever had or have you now) on this Standard Forms 93 he marked “No” to Depression or excessive worry.   

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  The applicant’s record of service included 80 days of lost time.  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.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.

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.



	_________xxxx__________
      	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)                                         AR20080006646



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ABCMR Record of Proceedings (cont)                                         AR20080006646



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