IN THE CASE OF:	  

		BOARD DATE:	    14 January 2010

		DOCKET NUMBER:  AR20090012393 


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 a general discharge.  He also requests that item 18b (Prior Active Service) on his DD Form 214 (Report of Separation from Active Duty) for the period ending 27 March 1978 be corrected.   

2.  The applicant states, in effect, that after enlisting in the U.S. Army Reserve (USAR) and completing basic and advanced individual training he was fit to reenlist so he enlisted in the Regular Army for a period of 3 years.  He claims that he was given a permanent profile 3 for his right elbow (which was determined not to be service connected) by a Medical Evaluation Board (MEB) and that he wanted to remain in the Army and was allowed to do so.  He contends that after serving 18-24 months without any misconduct his company commander referred him for a psychological evaluation and he was diagnosed with depression.  He states that he was given anti-depression medication with no follow-up treatment, no evaluation as to whether he could be retained in the service, and he was not afforded any legal advice by counsel.  He goes on to state that he went absent without leave (AWOL), that discharge proceedings were initiated, and that being mentally ill he did not understand the consequences of his actions.  He points out that his medical condition (depression) has gone untreated for 20 years, that he has not worked since his discharge, and that in 2003 the Department of Veterans Affairs granted compensation and pension award for service connected medical only and he began treatment for major depression.


3.  The applicant provides a second application wherein he states, in effect, that his DD Form 214 for the period ending 27 March 1978 does not show his prior active service in the USAR during the period 29 August 1976 to 26 January 1977.

4.  The applicant provides no documentary evidence in support of his applications.

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 USAR on 10 July 1976 for a period of 6 years.  He was ordered to active duty on 29 August 1976 for training and was released from active duty on 26 January 1977.  Item 18a (Net Active Service This Period) on his DD Form 214 for the period ending 26 January 1977 shows he completed 4 months and 28 days of active duty.
 
3.  The applicant's enlistment contract shows he enlisted in the Regular Army on 23 February 1977 for a period of 3 years.  He successfully completed One Station Unit Training.  

4.  On 15 March1977, the applicant submitted a request for retention in the military service.  He requested retention for physical reasons which existed prior to his enlistment in the Army and indicated that he had probable loose body, right elbow, which was known to him for approximately 4 years prior to his enlistment in the Army.  On 17 March 1977, a MEB found the applicant medically fit for further military service in accordance with medical fitness standards.  He was diagnosed with probable loose body, right elbow, existed prior to service.  On 
22 March 1977, the applicant agreed with the findings and recommendations of the Board.   

5.  On 12 July 1977, while in advanced individual training, nonjudicial punishment was imposed against the applicant for assault.  His punishment consisted of a reduction to E-1 (suspended).  On 29 July 1977, the suspended portion of the sentence was vacated. 

6.  On 15 August 1977, while in advanced individual training, nonjudicial punishment was imposed against the applicant for being AWOL from 8 August 1977 to 11 August 1977.  His punishment consisted of a forfeiture of pay (suspended).   

7.  On 2 November 1977, while in Korea, nonjudicial punishment was imposed against the applicant for being AWOL from 17 October 1977 to 20 October 1977.  His punishment consisted of extra duty.

8.  The applicant went AWOL on 23 December 1977 and returned to military control on 24 February 1978.  On 1 March 1978, charges were preferred against the applicant for the AWOL period.  
  
9.  On 1 March 1978, the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial 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, 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 laws.  He 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.  

10.  On 16 March 1978, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

11.  Accordingly, the applicant was discharged under other than honorable conditions on 27 March 1978 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 served a total of 11 months and 5 days of creditable active service.  Item 
15 (Date Entered Active Duty This Period) on his DD Form 214 shows the entry 
"77 02 22" [22 February 1977].  Item 18b on this DD Form 214 shows the entry "00 00 00."  This DD Form 214 also shows that he was separated from the service on temporary records and a Soldier's affidavit.

12.  There is no evidence of record which shows the applicant was diagnosed with depression or any mental condition prior to his discharge. 

13.  On 11 February 1980, the applicant enlisted in the Regular Army for a period of 4 years.  On 4 June 1980, he was released from custody and control of the Army due to misconduct (fraudulent entry).

14.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.  The applicant's contention that he was diagnosed with depression while in the Army was noted.  However, there is no evidence of record and the applicant did not provide any evidence which shows he was diagnosed with any mental condition prior to discharge.

2.  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.  




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

4.  The applicant’s record of service included three nonjudicial punishments and 63 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  Evidence of record shows the applicant completed 4 months and 28 days of creditable active service prior to his enlistment in the Regular Army on 
23 February 1977.  Therefore, item 18b on his DD Form 214 for the period ending 27 March 1978 should be corrected to show this service.  In addition, item 15 on this DD Form 214 should be corrected to show he entered active duty on 23 February 1977.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entries in items 15 and  18b on his DD Form 214 for the period ending 27 March 1978; 

	b.  adding the entry "77 02 23" in item 15 on this DD Form 214; and 

	c.  adding the entry "00 04 28" in item 18b on this DD Form 214. 






2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge under other than honorable conditions to a general discharge.  




      __________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)                                         AR20090012393





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ABCMR Record of Proceedings (cont)                                         AR20090012393



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