IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080008375 


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 be upgraded from under other than honorable conditions. 

2.  The applicant states, in effect, that he joined the Army to better his life and make a career.  Shortly after joining he got married and was stationed in Italy guarding nuclear weapons.  After his wife arrived in Italy rumors started that she was unfaithful.  That gave him anxiety and stress and he had a mental break down.  He continues that his company commander did nothing to help, so he asked for a job change but nothing was done.  Later he was accused of stealing from a fellow Soldier which added more stress.  After an investigation he was found not responsible.  The applicant states he desperate and wanted out of the service.

3.  The applicant states since his release form the service he got divorced and remarried with two children.  He has held steady jobs and is president of his own company and participates in helping his community.

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with the period ending 27 June 1977; two copies of the State of Florida Vital Statistics; a letter from Headquarters, U. S. Army, Southern European Task Force, dated 9 June 1977; a Letter of Recognition, dated 24 August 2004; a letters of support, dated August 2004; a letter of appreciation, 24 August 2004; a American Red Cross of Central Florida, emergency Services card; and 11 photos apparently of the applicant.

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 10 August 1976 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13B (Field Artillery Crewman).

3.  The court-martial charge sheet is not available; however, a 2nd endorsement to the applicant's request for discharge signed by the group commander indicates the applicant was pending summary court-martial charges for theft of personal property from a fellow Soldier valued at $1,400.00.

4.  On 9 June 1977, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

5.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Administration (VA); and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

6.  The applicant submitted a statement on his own behalf in which he requested a general discharge in view of his past record.  He stated "I am not capable of performing military tasks because I am, an (sic) have been under mental stress 



from the first day of basic training at Fort Sill, Oklahoma.  The Doctor told me I should be discharged from the Army.  They did not do so. Instead they gave me hard ship tour which made matters worse.  The Army has changed my life so that 
I can't perform well as being a married man an (sic) being in the Army also.  My life is being destroyed with my wife the only thing I love.  I joined the Army because it was a good job, and the job was meaningful.  I love my wife and I cannot cope with the Army and also be happy.  I am sorry that I have caused you problems sir."

7.  The appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 27 June 1977, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed a total of 10 months and 18 days of creditable active service with no lost time.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 25 April 1979, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  The applicant submitted a letter of support from his former wife, dated 
24 August 2004.  The author stated, in effect, that the applicant had always paid his child support on time and was always willing to help with financial assistance with their two children.  The author further stated that the applicant is a good person and has not been in trouble with the law.  He has been very supportive of his immediate family for years.  He is the one to go and count on when they are in a tough situation.

10.  The applicant submitted a letter of support from his mother in-law, dated August 2004.  The author stated, in effect, that the applicant had always there for her and her husband.  The author further stated that the applicant has helped them on numerous occasions without any hesitation and they are grateful and appreciative of him.





11.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 

12.  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.  

13.  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.  There is no evidence and the applicant has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service for the anxiety and stress he suffered while coping with his family issue.  It is unfortunate that he and his then-wife faced difficulties at that time.  

2.  The applicant's post-service conduct is noteworthy.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

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

4.  The applicant's records show that he was pending summary court-martial charges for theft of personal property.  He provides no evidence to show that an investigation later found he was not responsible.  Based on these facts, the 
applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of 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)                                         AR20080008375



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ABCMR Record of Proceedings (cont)                                         AR20080008375



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