IN THE CASE OF:	

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090017377 


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

2.  The applicant states he injured his back at Fort Riley, KS.  He was evaluated and it was determined he had psychological problems, not physical problems.  He reiterates that he injured his back and still has back problems.

3.  The applicant provides two medical documents and two letters 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 completed prior inactive and active service as a member of the Army National Guard.  He enlisted in the Regular Army on 18 October 1976 and was assigned to Fort Riley, KS, in December 1976.

3.  On 22 July 1977, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for two specifications of being absent without leave (AWOL) from 3 June 1977 to 17 June 1977 and 5 July 1977 to 15 July 1977.

4.  The applicant's Standard Form 513 (Consultation Sheet) shows he was in an automobile accident in June 1977.  He was diagnosed with thoracic and cervical back pain.

5.  The applicant's Standard Form 600 (Chronological Record of Medical Care) shows he was treated on 30 June 1997 and had symptoms of anxiety and depression over recent events and pressures.  The examining physician indicated the applicant wanted to get out of the Army.

6.  On 7 October 1977, charges were preferred against the applicant for three specifications of being AWOL from 3 June 1977 to 17 June 1977, 5 July 1977 to 15 July 1977, and 22 July 1977 to 4 October 1977.

7.  On 7 October 1977, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

8.  On 20 October 1977, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with issuance of a UOTHC Discharge Certificate.

9.  The applicant was discharged from active duty on 28 October 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 9 months and 5 days of active military service.  His DD Form 214 (Report of Separation from Active Duty) shows he had 98 days of lost time and was on excess leave from 7 October 1977 to 28 October 1977.

10.  The applicant provided a self-authored statement in which he stated he was on his way home on 6 March 1977 and had a car accident.  He went to a doctor on 9 March 1977 for neck and back pain.  He returned to Fort Riley, KS, on 16 June 1977 and experienced pain during physical training.  The applicant stated he went to the doctor and was told that it was difficult to find back problems.  He was also told that it [back problem] was only in his head and he was sent to mental health services.  He felt like he was not getting help with his neck and back pain which depressed him, so he wanted to get out of the Army.

11.  The applicant provided a letter of support in which an individual with the same surname stated she had known him since December 1976.  She attested to the information summarized in the applicant's self-authored statement.

12.  On 17 July 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  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 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.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 contentions regarding his back problems are acknowledged.  However, he admits in his self-authored statement that he was not getting help with his neck and back pain, became depressed, and wanted to get out of the Army.

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.  The evidence of record contains no indication that the request was made under coercion or duress.

3.  The applicant's record of service shows he received one Article 15 for being AWOL on two separate occasions and he was charged for being AWOL for 98 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general under honorable conditions discharge.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.

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)                                         AR20090017377



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ABCMR Record of Proceedings (cont)                                         AR20090017377



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