IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008901 


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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states he suffered from post-traumatic stress disorder (PTSD) and alcohol/drug dependence.

3.  The applicant provides no additional documentation in support of this 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 military records show he enlisted in the Regular Army on 14 April 1966 and reenlisted on 15 April 1968.  He completed initial entry training and was awarded the military occupational specialty of engineer equipment repairman.  He was promoted to pay grade E-5.

3.  Records show that he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions during the period 25 November 1970 to 16 June 1972 for:

* driving a privately-owned vehicle 65 miles per hour in a 45-mile per hour zone
* failing to go at the time prescribed to his appointed place of duty
* willfully disobeying three lawful orders related to sergeant of the guard duties

4.  A DA Form 458 (Charge Sheet) in his records shows he was charged with being absent without authority during the periods of:

* on or about 31 August 1972 to on or about 14 November 1972
* on or about 27 November 1972 to on or about 3 January 1973
* on or about 15 February 1973 to on or about 23 January 1974

5.  On 31 January 1974, he voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to it.

6.  The applicant consulted with counsel and he was advised of his rights.  He acknowledged having been advised of the possible effects of an undesirable discharge.  He acknowledged that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, 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 understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He submitted a statement in his own behalf in which he requested permission to sign a waiver for a general discharge and also listed his military schooling, awards, and units.

7.  On 3 March 1974, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed he be given a General Discharge Certificate.

8.  On 19 March 1974, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at that time shows he completed a total of 6 years, 8 months, and 6 days of active military service.  Item 27 (Remarks) contains the entry, "455 days lost under 10 USC 972."

9.  The applicant's service medical health record was not available for review.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses the punishment for which included a bad conduct or dishonorable discharge under the UCMJ and the Manual for Courts-Martial could submit a request for discharge for the good of the service.  At the time of the applicant's separation, an Undesirable Discharge Certificate would normally be given to a member who was discharged for the good of the service.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he suffered from PTSD and alcohol/drug dependence which were the bases for his problems while he was in the service.

2.  His health record was not available for review.  There is no evidence in his record and he has not submitted any substantive evidence showing he had been diagnosed with PTSD or that he was being treated for an alcohol/drug dependence problem prior to or since his discharge.  He provided no explanation as to how his alleged PTSD or alcohol/drug dependence excuses or justifies his behavior.  Therefore, his contention of having suffered from PTSD and alcohol/drug dependence was not considered sufficiently mitigating in the determination of his case.

3.  The applicant received nonjudicial punishment on three occasions for a speeding traffic violation, failing to go at the time prescribed to his appointed place of duty, and willfully disobeying three lawful orders.

4.  He was also charged with being absent without authority for three extended periods of time for a total of approximately 455 days.  He voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.

5.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Normally a Soldier discharged for infractions such as his would have been given an undesirable discharge.  However, it appears his entire military record plus his request for a waiver for a general discharge were taken into consideration.  As such, he was given a general discharge instead of the usual undesirable discharge.

6.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  He voluntarily requested the proposed discharge; the type of discharge directed and the reasons 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.

7.  In view of the foregoing, 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)                                         AR20100008901



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ABCMR Record of Proceedings (cont)                                         AR20100008901



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