IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090016045 


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 upgrade of his undesirable discharge to a general, under honorable conditions discharge and treatment for his service-related disabilities.

2.  The applicant states he suffered from depression and severe hearing loss at the time of his discharge.  He states because he was unable to receive proper medical treatment he was forced to do something stupid to get away from the conditions he was serving under.  He states after failing his hearing test at the Armed Forces Entrance Examination Station (AFEES), he enlisted under military occupational specialty (MOS) 11C (Indirect Fire Infantry), not knowing exactly what it was or how noisy it would be.

3.  The applicant states after a year in service he began to assert his desire to leave the service.  He took steps up his chain of command all the way to the "AG" (presumed to mean the IG [inspector general]).  He was told the only way he could leave the service was to do something so drastic that they would kick him out.

4.  The applicant also states his daily life had become one of constant drug use and alcohol.  It was a common practice to initiate rookies and exercise mob rule to maintain order in the lower ranks.  He states he did not enlist for this kind of duty and began losing his grasp of reality.  In order to maintain his sanity he committed crimes to exit the conditions he lived under.

5.  The applicant also states at no time did he ever inform any superiors of the conditions he lived under because it was they who, in most instances, supplied the drugs including hashish, heroin, and opium.  He states to openly expose these conditions would have placed him at extreme risk.  He states he is now in dire need of medical attention he cannot afford for his hearing loss, depression, and other service-related injuries.

6.  The applicant provides, in support of his application, an undated page of a Standard Form (SF) 93 (Medical History) and eight pages from his service medical records, dated from 11 January to 9 November 1975.

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 military personnel records show he enlisted in the Regular Army (RA) on 22 October 1974 for a period of 2 years.  He completed basic combat and advanced individual training and was awarded MOS 11C.

3.  The applicant's service medical records show he suffered from high frequency hearing loss.  He was disqualified to be an engineer due to hearing loss and he was put into the infantry instead.  On 13 January 1975, he was placed on profile for hearing with no limitations and directed to wear hearing protection while on ranges.  On 9 April 1975, he was placed on a temporary profile for hearing and told to stay away from loud noises.

4.  On 18 March 1975, the applicant was assigned to the 1st Battalion, 51st Infantry in Germany.

5.  On 9 January 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.

6.  On 18 January 1976, court-martial charges were preferred against the applicant for entering a German store with the intent of committing a criminal offense and larceny of a total value of about $1,771.64 from a German National.

7.  On 18 March 1976, additional court-martial charges were preferred against the applicant for larceny of a total value of about $270.00 and disobeying a lawful command from a commissioned officer.

8.  On 25 March 1976, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will.

* guilty of the offense with which he was charged.

* afforded the opportunity to speak with counsel prior to making this request.

* advised he may be furnished an Undesirable Discharge Certificate.

9.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge and he:

* would be deprived of many or all Army benefits and

* may be ineligible for many or all Veterans Administration (VA) benefits.

10.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ; of the possible effects of an undesirable discharge if his request was approved; and of the procedures and rights available to him.

11.  On 31 March 1976, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be reduced to private (PV1)/pay grade E-1 and furnished an Undesirable Discharge Certificate.

12.  On 1 April 1976, the applicant received a mental status evaluation. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner noted the applicant was somewhat depressed and it was normal under his current circumstances.  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

13.  On 8 April 1976 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of discharge for the good of the service in lieu of court-martial.  He was issued an Undesirable Discharge Certificate.  He had completed 1 year, 5 months, and 17 days of active service that was characterized as under other than honorable conditions.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 8 June 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.

15.  The portion of an SF 93 submitted by the applicant contains annotations by the examiner that indicates the applicant had trouble with sleeping and depression due to confinement and facing a chapter 10 discharge.  His hearing loss was noted as having existed prior to service (EPTS).

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

17.  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 contends his undesirable discharge should be upgraded to a general, under honorable conditions discharge.  He also contends he was unable to get treatment for his hearing loss and depression.

2.  The applicant was being treated for his hearing loss by being placed on profile and advised to wear hearing protection and stay away from loud noises.  His depression was noted by two examiners to be the result of his confinement, not shown in his records, and his current situation concerning charges preferred and his pending discharge.  Therefore, his contention of not receiving treatment is not supported by the evidence.

3.  The applicant contends he began to assert his desire to leave the service after he was in for a year and that he took this all the way up his chain of command to the IG.  However, there is no evidence of this in the record and he has not submitted any evidence to support his contention.  Therefore, this was not considered a mitigating factor in the determination of this case.

4.  The applicant contends it was common practice to initiate rookies and exercise mob rule and there was a common usage of drugs provided by senior enlisted Soldiers.  However, by his own statement, he admits he never brought any of this to the attention of his superiors.  Therefore, in the absence of corroborating evidence these factors were not considered in the determination of this case.

5.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an undesirable discharge.  He could have gone to a court-martial and raised all of the above issues as extenuating/
mitigating circumstances.

6.  The applicant’s voluntary request for separation for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

7.  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.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

8.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

9.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

10.  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 that 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)                                         AR20090016045



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ABCMR Record of Proceedings (cont)                                         AR20090016045



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