IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000898 


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 discharge.

2.  The applicant states:

* he was drinking while taking his depression medication
* he did not know until he got out of the hospital and his girlfriend made him read the medication bottle
* both the alcohol and medication made him crazy without knowing it
* he caught pneumonia at the reception station, he was hospitalized for
3 weeks, he went on a 12-day leave, and he had a relapse
* he gets double pneumonia every 8 to 10 years
* he did good in basic training and for a short time in military police (MP) school
* he was too young to be an MP

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 was born on 19 December 1954.  He enlisted in the Regular Army on 28 January 1972 for a period of 2 years.  While in basic combat training, on 17 April 1972, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty and being disrespectful toward a noncommissioned officer.

3.  The applicant completed basic combat training and he was assigned to Fort Gordon, GA for advanced individual training in military occupational specialty (MOS) 95B (military police); however, he did not complete this training.  He subsequently completed training in MOS 76A (supplyman).

4.  A DA Form 2496 (Disposition Form), dated 14 July 1972, states the applicant's hospitalization during the period 10 July 1972 to 12 July 1972 resulting from his intemperate use of alcohol or other drugs was considered not in line of duty.

5.  The applicant went absent without leave (AWOL) on 14 July 1972 and he returned to military control on 4 September 1971.  He went AWOL again on 
7 September 1972 and returned to military control on 23 October 1972.  On 
6 November 1972, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.

6.  In November 1972, after consulting with counsel, the applicant submitted a request for 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 indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged 


that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  On 13 December 1972, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.

8.  Accordingly, the applicant was discharged with an undesirable discharge on 13 December 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He had served a total of 7 months and 8 days of creditable active service with 98 days of time lost.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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 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 an individual who was discharged for the good of the Service.  

11.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he completed basic and advanced individual training.


2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of 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; however, he elected not 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 brief record of service included one nonjudicial punishment and 98 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

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)                                         AR20100000898



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)