BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20090021892 


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 an upgrade of his under other than honorable discharge to a general or honorable discharge.

2.  The applicant states, in effect, that he feels he was not mentally stable at the time of his enlistment.  He joined the military to get away from his father.

3.  The applicant provides no documentary evidence 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 he enlisted in the Regular Army on 2 August 1977.  Records show the applicant was 17 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist). 

3.  A Standard Form 88 (Report of Medical History) and a Standard Form 93 (Report of Medical History), both dated 27 June 1977, which were completed to document the applicant's entrance physical examination, show the applicant suffered from no disabling medical conditions that would have disqualified his entrance into the military.  In fact, the applicant states on the Standard Form 93 that he did not suffer from depression or excessive worry.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to private/pay grade E-2 on 9 March 1978 and that this is the highest rank he attained while serving on active duty.  The DD Form 2-1 also shows the applicant went absent without leave on 1 March 1978 and was dropped from the unit rolls on 30 March 1978.  The applicant surrendered to military authorities on 8 April 1978 and was subsequently discharged from the military under chapter 10, Army Regulation 635-200 (Personnel Separations).

5.  The applicant's records show no disciplinary action under Article 15, Uniform Code of Military Justice.

6.  DA Form 3822-R (Report of Mental Status Evaluation), dated 18 April 1978, shows the applicant suffered from no mental illness.

7.  The applicant's separation packet is not available.  The applicant's DD Form 214 shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with an under other than honorable discharge on 11 May 1978.  The DD Form 214 shows the applicant held the rank of private/pay grade E-1 on the date of discharge and that he completed 8 months and 4 days of active military service.  The DD Form 214 also shows that the applicant had 36 days of lost time from 1 March 1978 through 7 April 1978.

8.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

9.  The Manual for Courts-Martial Table of Maximum Punishments set forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for absence without leave.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 Veterans Administration 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 to an individual who was discharged for the good of the service.

	b.  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.

   c.  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

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  Although the specific facts and circumstances surrounding the applicant's discharge processing are not available, the evidence does include a properly-constituted DD Form 214 which identifies that the applicant was discharged in accordance with Army Regulation 635-200, chapter 10, and there is a presumption of government regularity attached to this document.

2.  The applicant's contentions that he feels he was not mentally stable at the time of his enlistment and that he joined the military to get away from his father were carefully considered and found insufficient in evidence.

3.  The applicant's Standard Form 88 and Standard Form 93 were both completed on 27 June 1977.  These documents were completed to document the applicant's entrance in the military shows the applicant suffered from no disabling medical conditions that would have disqualify his entrance into the military.  In fact, the applicant was asked on the Standard Form 93 whether he suffered from depression or excessive worry and have he had any illness including mental that he had not already indicated on form.  The applicant checked the "No" block in answer to those particular questions.

4.  Records show that the applicant declined a medical examination prior to separation.  The applicant was given a mental evaluation prior to separation on 27 April 1981.  The DD Form 3822-R confirms the applicant was suffering from no disabling mental condition that warranted his separation processing through medical channels.  The examining medical doctor stated the applicant has the mental capacity to understand and participate in the proceedings and was mentally responsible.  The record also shows the applicant entered the military at the age of 17 years of age to get away from his father.  The reason for the applicant wanting to be away from his father or any evidence of abuse or negligence from his father was not provided.  Therefore, considering all the facts of the case, the type of discharge was proper and the characterization of service directed was equitable.

5.  In order to justify correction of 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.  Therefore, in view of all of the above, there is no basis for granting the applicant's requested relief.


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)                                         AR20090021892



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ABCMR Record of Proceedings (cont)                                         AR20090021892



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