IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080008322 


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, in effect, that his undesirable discharge (UD) be upgraded to a general discharge (GD), under honorable conditions.   

2.  The applicant states, in effect, that in 2007, he discovered he suffers from a life long mental illness, and he also suffers from alcoholism and addiction, which were undiagnosed at the time of his discharge.  

3.  The applicant refers to two psychological evaluations in his application; however, these documents were not with the application received for the Board to review. 

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 that he was inducted into the Army and entered active duty on 10 July 1970.  He never completed training and was never awarded a military occupational specialty (MOS).  His Enlisted Qualification Record (DA Form 20) shows that he never advanced above the rank of 
private/E-1 (PV1) while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  Item 44 (Time Lost) shows he 258 days of time lost due to six separate absent without leave (AWOL) periods between 2 November 1970 and 21 June 1971.  

3.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions between 4 August 1970 and 7 April 1971; and a summary court-martial conviction on 16 March 1971.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any medical treatment records that indicate the applicant was suffering from a disabling physical or mental condition that would have supported his separation processing through medical channels at the time of his discharge.  It is also void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The OMPF does include a properly constituted separation document (DD Form 214) that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, on 13 March 1972, after completing a total of 11 months and 21 days of creditable active military service and accruing 258 days of time lost due to being AWOL.

5.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.  

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he has recently been diagnosed with a mental disorder, alcoholism and addiction was carefully considered.  However, while his current medical condition is unfortunate, this factor is not sufficiently mitigating to support an upgrade of his discharge at this late date.  

2.  The evidence of record is void of any medical treatment records that indicate he was suffering from a disabling physical or mental condition that would have supported his separation processing through medical channels at the time of his discharge.  The available evidence also does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  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 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.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance, and his undistinguished record of service clearly did not support a GD or HD at the time, nor does it support an upgrade now.  

5.  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

___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 that 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)                                         AR20080008322



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ABCMR Record of Proceedings (cont)                                         AR20080008322


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