BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100016948 


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 undesirable discharge (UD) be changed to something more honorable.

2.  The applicant states that while in basic combat training, a fellow trainee pointed an M16 rifle at himself.  He pushed the rifle away from the trainee and the weapon discharged with the bullet traveling next to his head.  He was abused by a drill sergeant for not killing the fellow trainee as he was trained to do.  At that point he began showing signs of increased irritability, anger, nightmares, intrusive memories, and depression.  He began using drugs and alcohol to deal with those feelings.

3.  He reenlisted solely for the money to buy drugs and alcohol.  He had the mindset of a 17-year old and had suffered two traumatic events which remained untreated.  He contends that if he had received psychiatric treatment for the traumatic events he experienced, he would have behaved differently.

4.  The applicant provides excerpts of Department of Veterans Affairs (VA) medical records.  Some of these records show him receiving psychiatric treatment.

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 21 June 1972, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-4.  During this enlistment he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, twice for failing to go to his appointed place of duty on three occasions.  He immediately reenlisted on 29 March 1974.

3.  On 14 May 1975, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 28 July 1974 to 9 May 1975.

4.  On 14 May 1975, the applicant requested discharge in lieu of trial by court-martial.  In his request he acknowledged that if his request were approved he could receive a UD.  The applicant submitted a statement with his request.  In that statement he said he "went AWOL because of family problems and problems I had with my unit and the Army.  I no longer wish to serve in the U.S. Army or in the defense of this Nation.  I will take any discharge that will discontinue my service in the U.S. Army."

5.  The applicant's request was approved by the appropriate authority.  Accordingly, on 16 June 1975 the applicant was given a UD.

6.  Army Regulation 635-200 (Personnel Separations) 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 VA 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.
7.  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.

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.  There is no evidence in the applicant's records of the incident to which he refers or that he was suffering from any psychological problems when he was on active duty.

2.  While the applicant is currently being treated for psychological problems, this in no way indicates the applicant had psychological problems while he was serving on active duty 35 years ago.

3.  The applicant was AWOL for a prolonged period of time.  Such misconduct certainly warranted a UD.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20100016948



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ABCMR Record of Proceedings (cont)                                         AR20100016948



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