IN THE CASE OF:	  

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080017873 


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 under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that at the time of his enlistment he had only an 8th grade education, he could not read or write and he had been diagnosed with mental retardation.  He claims that his local recruiter provided him with answers to the Army entrance examination so he could enlist in the Army.  He further states that during the time he served in the military, he was under constant pressure and ridiculed for his inability to perform up to standards, which caused him to go absent without leave (AWOL) and this resulted in his court-martial.  He also states that although he wanted to serve his country, he was destined to fail due to his mental state and that he should never have been allowed to enter the Army.  He states that after his discharge from the military he was further diagnosed with paranoid schizophrenia and other psychotic disorders, which have caused his inability to maintain employment.  He states that he was granted social security disability benefits in March 1992, and that he is now seeking medical assistance from the Department of Veterans Affairs (VA); however, based on his UOTHC discharge, he is ineligible to receive VA benefits.

3.  The applicant provides a self-authored statement, DD Form 214 (Report of Separation from Active Duty) and a Social Security Administration letter 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's record shows that he enlisted in the Regular Army and entered active duty on 19 August 1974.  He successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist), and was assigned to Fort Hood, Texas.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was advanced to the rank of private/E-2 (PV2) on 11 June 1976, and that this is the highest rank he held while serving on active duty.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's record contains a Report of Medical Examination (SF 88), dated 14 August 1974, which was prepared on the applicant during his enlistment processing.  The clinical evaluation portion of the form shows the applicant received a normal psychiatric evaluation and Item 73 (Notes) confirms he had no disqualifying defects or communicable diseases.  Upon completion of the entrance physical examination process, the applicant was assigned a PULHES of 111221 (Category A), and was found fit and qualified for entrance into the military.

5.  The applicant's record contains a Notice of Return of United State Army Member from Unauthorized Absence (DA Form 3836).  This document shows that the applicant went AWOL on 27 August 1974, was dropped from the rolls (DFR) on 27 September 1974.  It further shows that he was apprehended by the Federal Bureau of Investigation (FBI) and returned to military control on 10 April 1975.


6.  On 9 May 1975, a Special Court-Martial (SPCM) convicted the applicant of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 27 August 1974 through on or about 9 April 1975.  The resultant sentence was confinement at hard labor for 2 months and a forfeiture of $100.00 per month for 2 months.

7.  The applicant's record also shows that he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ on the following three separate occasions for the offenses indicated:  11 February 1976, for being AWOL from on or about 26 January 1976 until on or about 5 February 1976; 
31 March 1976, for being disrespectful in language to his superior noncommissioned officer on or about 29 March 1976; and on 14 October 1976, for being AWOL from on or about 17 August 1976 until on or about 
10 September 1976.  

8.  The applicant's record contains a Report of Medical Examination (SF 88) and a Report of Medical History (SF 93), both dated 11 March 1977, which were prepared during his separation processing.  The clinical evaluation portion of the SF 88 shows he received a normal psychiatric evaluation from the examining physician, and there were no medically disabling conditions noted during the examination.  The medical examination shows the applicant was determined to be medically cleared for separation/retention by competent medical authority. 

9.  The applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain the separation approval document, dated 30 March 1977, in which the separation authority approved the applicant's separation for misconduct and directed the applicant receive an UOTHC discharge, and a DD Form 214 (Report of Separation From Active Duty) that identifies the authority and reason for the applicant's discharge.  

10.  The DD Form 214 on file shows that on 21 April 1977, the applicant was discharged under the provisions of Chapter 13, Army Regulation 635-200, by reason of misconduct and that he received an UOTHC discharge.  It also shows that at the time of his discharge, he held the rank of PV1 and had completed a total of 1 year, 9 months, and 7 days of creditable active military service and had accrued 331 days of time lost due to AWOL and confinement. 

11.  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. 


12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for unfitness.  The separation authority could issue an honorable discharge (HD) or general, under honorable conditions discharge (GD) if it was warranted by the member's overall record of service; however, an UOTHC discharge was normally considered appropriate for members separating under this provision of the regulation.  

13.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b of the same regulation provides that a GD 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 contention that his UOTHC discharge should be upgraded because his illiteracy and mental incompetence impaired his ability to serve was carefully considered.  However, there is insufficient evidence to support this claim.  The applicant's record contains both entrance and separation physical examinations that confirm he was mentally and physically qualified for both entrance into and separation from military service.  Further, his completion of MOS training and more than 1 year of creditable service confirms he had the physical and mental ability to serve successfully had he chose to do so.  

2.  The applicant's contention that his discharge also should be upgraded because he is now in need of medical care from the VA was also carefully considered.  However, while his current medical condition is unfortunate, this factor alone is not sufficiently mitigating to support granting the requested relief.  

3.  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.  
4.  Absent information and evidence to the contrary, it is concluded that the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and a SPCM conviction.  This extensive record of misconduct clearly did not support the issue of an HD or GD at the time of his discharge and does not support an upgrade of his discharge at this late date.  

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

___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)                                         AR20080017873



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ABCMR Record of Proceedings (cont)                                         AR20080017873


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