BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100019580 


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 be upgraded to honorable.

2.  The applicant states, in effect, he does not believe he would have done the things that he did if he had not been on medication (Stelazine).  He states that he drank heavily in Germany and he was given the option of going to prison or being discharged instead of being helped.  He was ashamed of his discharge and attempted to reenter the Army 5 years later but he was denied because his records indicate he tried to commit suicide which is not true.  Further, he states he could have been a good Soldier had he not been shunned and sent to another unit.  

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 16 March 1976.

3.  On 5 November 1976, charges were preferred under the Uniform Code of Military Justice (UCMJ) for the following:

   a.  Violation of Article 108, two specifications of damaging a U.S. Army vehicle, by striking two parked cars and a building;

	b.  Violation of Article 111, two specifications of operating a vehicle at an excessive speed while drunk; 

	c.  Violation of Article 92, two specifications of failing to obey a lawful order by operating a military vehicle without a valid military operator's license;

	d.  Violation of Article 121, two specifications of wrongfully appropriating an Army vehicle; 

	e.  Violation of Article 128, one specification of committing assault; and

	f.  Violation of Article 134, three specifications of wrongfully and unlawfully leaving the scene of an accident, breaking restriction, and unlawfully entering the desk of a noncommissioned officer.

4.  It appears that, at some stage, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  It also appears that following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

5.  In his request for discharge, he acknowledged that he was making this request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications that were attached to it.  He also indicated he understood that if his request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  Finally, his request stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.

6.  He submitted a statement in his own behalf.  In his statement, he indicated that his family problems with his wife and parents caused him to get drunk and in trouble.  His mother had been very ill and the doctor felt he should be with her at this time.  He asked that his age, which was 18 at the time, and his family situation be taken into consideration and that he be granted a discharge that would not seriously hurt him in civilian life. 

7.  On 9 November 1976, his immediate commander recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.

8.  His Standard Form 93 (Report of Medical History) shows in item 8 (Statement of Examinee's Present Health and Medications Currently Used) the entry "Feel good."  Neither the drug Stelazine nor any other medication is listed. 

9.  The record contains a Biological Information Sheet which states the applicant tried to commit suicide by ingesting an unspecified number of an unknown drug on 27 October 1976.  He was discovered as soon as he took it and taken to the hospital.

10.  On 16 November 1976, the separation authority approved his request for discharge for the good of the service in accordance with Army Regulation 
635-200, chapter 10, and directed that he be issued an Undesirable Discharge Certificate.  On 23 November 1976, he was discharged accordingly.  The 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he had completed 8 months and 8 days of active service.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Under the UCMJ, the maximum punishment allowed for the violations for which he was charged ranged from 6 months to 10 years confinement, and either a bad conduct or dishonorable discharge.

13.  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.

14.  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.

15.  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 discharge should be upgraded.

2.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  He contends the drug Stelazine caused his misconduct but the record is void of any evidence to support this contention.  In addition, he did not identify the use of this drug on his medical history prior to separation.  
4.  Additionally, he contends he was denied reentry into the Army because his record falsely showed he attempted suicide.  The available record does show he attempted suicide or that he was denied reentry into the Army based on attempted suicide.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or honorable 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)                                         AR20100019580



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019580



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1