BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021256 


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 his undesirable discharge be upgraded.

2.  The applicant states, in effect, he thought his fellow Soldiers were out to harm him and he developed mental problems because everyone kept slipping him LSD [lysergic acid diethylamide].  He thinks his discharge should be upgraded because:

* Under current standards he would not have received the type of discharge he received
* His conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good
* His record of promotions shows he was generally a good service member
* He has been a good citizen since his discharge
* His record of nonjudicial punishment/Article 15s indicate only isolated or minor offenses
* Personal problems and psychiatric problems impaired his ability to serve
* He tried to serve and wanted to but he just couldn't or wasn't able to
* His enlistment option was not satisfied or waived
* Since his discharge he has never been in trouble
* He didn't know he was mentally disabled  

3.  The applicant provides numerous medical records 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 enlisted in the Regular Army on 8 November 1971 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 31 August 1972, nonjudicial punishment (NJP) was imposed against the applicant for violating a regulation.

4.  On 20 March 1974, he was convicted by a summary court-martial of being absent without leave (AWOL) from 16 October 1973 to 2 March 1974.  He was sentenced to forfeit $195.00 pay, to be reduced to E-2, and restriction for 
30 days.  On 20 March 1974, the convening authority approved the sentence.

5.  The applicant went AWOL on 4 April 1974 and returned to military control on 12 June 1974.  Charges were preferred against the applicant on 17 June 1974 for the AWOL period.

6.  On 17 June 1974, 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 trial by court-martial.  He indicated in his request he understood that 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, 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 to submit a statement in his own behalf.  In summary, he stated he requested a discharge because the longer he stayed in the Army the more fed up he became, he indicated that changes should be made to improve the Army because thousands of Soldiers were just doing Army red tape and Mickey Mouse details, and the feeling of being a "peon" was unbearable to him.

7.  The separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  On 14 June 1974, he underwent a separation physical examination and was found qualified for separation.

9.  He was separated with an undesirable discharge on 3 July 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years and 22 days of total active service with 216 days of lost time.

10.  No evidence shows he was diagnosed with any mental condition prior to his discharge.

11.  In support of his claim, the applicant provided a medical record which shows he was diagnosed with schizotypal personality disorder in 1992.  Other psychiatric records he provided show he was diagnosed with schizoaffective disorder on 27 April 1995 and he is currently being treated for this disorder.

12.  On 26 July 1982, the Army Discharge Review Board denied his request for an honorable 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, the 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 to an individual who was discharged for the good of the service.

14.  Army Regulation 635-200, chapter 10 of the regulation currently in effect provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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 evidence of record does not support the applicant's contention that under current standards he would not have received the type of discharge he received.  The current governing regulation states that an individual discharged in lieu of trial by court-martial would normally be furnished a discharge characterized as under other than honorable conditions.  

2.  Personal problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show he sought assistance from his chain of command or chaplain to resolve his alleged problems within established Army procedures prior to going AWOL.

3.  Although he contends psychiatric problems impaired his ability to serve, no evidence shows he was having psychiatric problems in 1974 that interfered with his ability to perform his military duties or that were the underlying cause for the misconduct that led to his discharge.  

4.  Good post service conduct alone is normally not a basis for upgrading a discharge.


5.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7.  His record of service included one NJP, one summary court-martial conviction, and 216 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's record of service is insufficiently meritorious to warrant an honorable or 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)                                         AR20100021256



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021256



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1