IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090001804 


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 discharge under other than honorable conditions be upgraded to an honorable, general, or medical discharge and that his narrative reason for separation be changed to show that he was discharged by reason of physical disability.

2.  The applicant states that he believed that he was going to be killed by an individual who was busted for drugs.  He states that during his initial period of enlistment, he was part of the Presidential Honor Guard from September 1977 through 1978.  He states that during this tour of duty fellow members in the next room were caught using drugs as a result of his notification to his chain of command.  He states that he was transferred to the 101st Airborne and that he believes that his commanding officer was killed in a parachute mishap.

3.  The applicant indicates that he is submitting a personal statement, two buddy statements, and a letter from his mother in support of his application.  However, no additional documentation was provided.

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.  On 13 June 1977, the applicant enlisted in the Regular Army (RA) in Beckley, West Virginia, for 4 years in the pay grade of E-1.  He successfully completed his training as an infantryman and he was assigned to Company A, 1st Battalion, 3rd Infantry Division, Fort Myer, Virginia, on 4 October 1977.

3.  The applicant was promoted to the pay grade of E-2 on 13 December 1977 and he was promoted to the pay grade of E-3 on 13 June 1978.

4.  The applicant's records show that he was counseled on at least fifteen separate occasions between 17 November 1977 and 5 July 1978 for his desire to be discharged, his mother's efforts regarding his military performance, his attitude and efficiency, suicide threats, duty performance, open door policy, and an incident in the barracks.

5.  On 25 July 1978, the applicant's company commander was notified by the company chaplain that after his third interview with the applicant, he was under the opinion that the applicant was not suited for military life.  The chaplain states that it had become increasingly obvious that he had feelings of fear that inhibited his adjustment to fellow Soldiers.  The chaplain stated that it was his opinion, which at that time had been reinforced, that the applicant should be expeditiously discharged for the benefit of both himself and the United States Army.  He stated that further efforts to "bend" the applicant into adjustment would be foolish.

6.  On 28 July 1978, the applicant underwent a mental status evaluation.  He was found to have no significant mental illness and he met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

7.  On 2 August 1978, the applicant was notified that he was being recommended for discharge under the provision of Army Regulation 635-200 (Personnel Separations), paragraph 5-31, under the Expeditious Discharge Program.  The commander cited his failure to adapt socially or emotionally to the Army as the basis for the elimination action.  The applicant voluntarily consented to the discharge on 29 August 1978 and he acknowledged that he understood that he would receive a discharge under honorable conditions (general).

8.  The appropriate authority approved the recommendation for discharge on 5 September 1978 and directed the issuance of a General Discharge Certificate and a reentry eligibility (RE) code 3.

9.  Accordingly, on 8 September 1978, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program.  He was furnished a General Discharge Certificate.

10.  On 16 January 1981, the applicant was granted a waiver for enlistment and he enlisted in the Regular Army for 3 years on 26 May 1981.

11.  The applicant went absent without leave (AWOL) on 5 June 1981 and remained absent until 8 June 1981.  He went AWOL again on 11 June 1981 and remained absent in desertion until he surrendered to military authorities on 26 October 1981.

12.  On 27 October 1981, the applicant was notified that charges were pending against him for being AWOL from 11 June 1981 until 26 October 1981.  He acknowledged receipt of the notification on 28 October 1981 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged that he understood that he would be furnished a discharge under other than honorable conditions and that he had been advised of and understood the effects of being issued a discharge under other than honorable conditions.

13.  The appropriate authority approved the request for discharge on 24 November 1981 and recommended the issuance of a discharge under other than honorable conditions.  Accordingly, on 11 January 1982, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed only 2 months and 28 days of net active service this period.

14.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

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.

16.  Paragraph 3-7 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.

17.  Paragraph 3-7 also 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 contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge or that his narrative reason for separation should be changed to show that he was discharged by reason of physical disability based on his belief that he was going to be killed by an individual who was busted for drugs.

2.  His contentions have been noted.  However, his contentions are not supported by the evidence of record.  There is no evidence in the available records nor has the applicant submitted any evidence that shows he provided information to his chain of command regarding a drug bust and as a result, feared for his life.

3.  The evidence of records indicates that the applicant could not adjust to military life during either of his periods of enlistment.  He was furnished a general discharge during his initial period of enlistment because of his inability to adjust to military life.  When he again enlisted, he went AWOL after approximately 9 days and remained absent in desertion until he surrendered to military authorities over 4 months later.

4.  The applicant has provided no evidence to show that he incurred an injury while he was in the Army that would have resulted in his being processed for discharge through medical channels.

5.  He was discharged in accordance with the applicable regulation with no indication of procedural errors that would tend to have jeopardized his rights.  Based on his overall record of service, the type of discharge that he received and the reasons therefore, appears to be appropriate.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001804



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ABCMR Record of Proceedings (cont)                                         AR20090001804



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