IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100017237 


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, in effect, upgrade of his undesirable discharge to a general discharge.

2.  The applicant states his medical records show he received anxiety and depression treatment while in the military.  He adds that he suffers from nightmares, fatigue, insomnia, excessive worry, and loss of appetite.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Department of Veterans Affairs (VA) mental status examination summary
* a Grady Memorial Hospital psychiatric discharge summary
* a Georgia Regional Hospital summary discharge document
* an extract of his military medical records

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 was inducted into the Army of the United States on 18 January 1968.  He completed initial entry training and he was awarded military occupational specialty 95B (military police).  He was advanced to the rank/grade of specialist four (SP4)/E-4.

3.  He was honorably released from active duty on 3 December 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year, 10 months, and 16 days of creditable active service during this period of active duty.  On 31 July 1972, he enlisted in the Regular Army for a period of 3 years.

4.  Records show that he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions during the period 10 November 1972 to 24 April 1973 for:

* failing to go at the time prescribed to a mandatory briefing
* failing to go at the time prescribed to his appointed place of duty and failing to obey a lawful order
* failing to go at the time prescribed to his appointed place of duty

5.  A DD Form 458 (Charge Sheet) in his records, dated 10 July 1973, shows he was charged with behaving himself with disrespect towards his superior commissioned officer and for being absent without leave (AWOL) on three occasions.

6.  On 11 July 1973, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 10, for the good of the service.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to it.

7.  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 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 understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

8.  On 26 July 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

9.  On 31 July 1973, he was discharged accordingly.  The DD Form 214 he was issued at that time shows he completed 1 year and 1 day of total active service.

10.  The applicant provided an extract of his medical records which in part showed he had complained of being bored with work, difficulty sleeping, and nightmares in 1969 during his initial period of active duty.  A Standard Form
(SF) 88 (Report of Medical Examination), dated 13 June 1972, for his subsequent enlistment in the Army, showed he was rated with a profile serial of all "1's," indicating he was considered to possess a high level of medical fitness in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and all evaluated areas on the form displayed a check mark under the normal column.

11.  On 19 August 1974 and on 27 November 1984, the Army Discharge Review Board denied the applicant's requests for an upgrade of his undesirable discharge.

12.  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 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.  

13.  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's medical records from his initial enlistment indicated he had complained of being bored with work, difficulty sleeping, and nightmares on at least one occasion in 1969 which was during his initial period of active duty.  The SF 88 for his subsequent enlistment in the Army showed he was considered to possess a high level of medical fitness and all evaluated areas on the form displayed a check mark under the normal column.  There is no mention of these medical conditions in his discharge packet and he provided no explanation as to how any anxiety or depressive medical conditions he may have had excuses or justifies his behavior.  Therefore, his contentions are insufficient to mitigate the offenses for which he voluntarily requested discharge.

2.  He received nonjudicial punishment for failing to obey a lawful order, for failing to go at the time prescribed to his appointed place of duty on two occasions, and for failing to go at the time prescribed to a mandatory briefing.  He was subsequently charged with behaving himself with disrespect towards his superior commissioned officer and for being AWOL on three occasions.

3.  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.

4.  The evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  The proposed discharge, the type of discharge directed, and the reasons for separation were appropriate considering all the facts of the case; therefore, he was properly and equitably discharged.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.


5.  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)                                         AR20100017237



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017237



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1