IN THE CASE OF:	  
 
		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000173 


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 conditions discharge to a general discharge.

2.  The applicant states he was denied a rehabilitation program and a psychological evaluation. 

3.  The applicant provides a statement, dated 5 November 2009; copies of his DD Forms 214 (Report of Separation from Active Duty or Certificate of Release or Discharge from Active Duty), dated 24 November 1977 and 9 April 1981; and a copy of his certificate of birth, dated (issued) 1 May 2008.

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.  Having had prior service in the Puerto Rico Army National Guard, the applicant's records show he enlisted in the Regular Army for a period of 4 years on 26 June 1978 and held military occupational specialty 64C (Motor Transport Operator). 

3.  His records also show he served in Germany from on or about 4 October 1980 to on or about 8 April 1981 and he attained the rank/grade of specialist four (SP4)/E-4.

4.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his record contains the following documents:

	a.  Orders 58-13, issued by Headquarters, U.S. Army Element, Central Army Group, on 1 April 1981, reducing him from SP4/E-4 to private/E-1 effective 1 April 1981 by reason of being discharged with an under other than honorable conditions discharge.

	b.  Orders 60-1, issued by Headquarters, U.S. Army Element, Central Army Group, on 3 April 1981, directing his discharge from the Army effective 8 April 1981.

	c.  A DA Form 137 (Installation Clearance Papers), dated on various dates in April 1981 showing he was outprocessed through all stations at Patton Barracks, Germany, including the medical treatment facility.

	d.  A properly-constituted DD Form 214 that shows he was discharged on 9 April 1981 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 2 years, 9 months, and 15 days of creditable active service during this period of service.

5.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

6.  He submitted a statement authored by a World War II veteran and retired nurse wherein she states that about three years after his discharge, the applicant received treatment for a mental disease for a period of 5 years.  He also continued treatment in Puerto Rico and ultimately received a disability pension.  She adds that he thinks if the Army had done a complete physical examination before his discharge from the Army, his signs and symptoms would have been detected.  If his discharge is upgraded, it would improve his self-esteem and mental health and would be able to receive medical benefits from the Department of Veterans Affairs.  More importantly, he would like his coffin be covered with the American flag upon his death.

7.  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 under other than honorable conditions is normally considered appropriate.

8.  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 that his under other than honorable conditions discharge should be upgraded to a general discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 9 April 1981 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during this period of service.   

4.  The applicant's argument that if the Army had done a complete physical examination before his discharge from the Army, his signs and symptoms would have been detected lacks merit as his installation clearance papers show he cleared the medical treatment facility.

5.  There is no evidence in the available records, nor did he provide documentation, to warrant an upgrade of his discharge.  Furthermore, the ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  In order to justify correction of a military record, he must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant him the 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)                                         AR20100000173



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ABCMR Record of Proceedings (cont)                                         AR20100000173



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