IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022303 


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, his undesirable discharge be changed to a general discharge or a medical discharge.

2.  The applicant states:

* He had mental problems at the time
* They told him he could have his discharge upgraded
* The only thing he did wrong was go absent without leave (AWOL) for a week

3.  The applicant provides his DD Form 214 (Report of Transfer or Discharge) 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 26 February 1971 for a period of 2 years.  He successfully completed basic combat training.

3.  On 3 May 1971, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to at the time prescribed to his appointed place of duty.

4.  On 6 October 1971, NJP was imposed against the applicant for three specifications of failing to go to at the time prescribed to his appointed place of duty.

5.  On 15 December 1971, NJP was imposed against the applicant for being AWOL from 24 November 1971 to 14 December 1971.  

6.  On 14 February 1972, NJP was imposed against the applicant for being AWOL from 1 February 1972 to 13 February 1972.

7.  The available records contain an incomplete DD Form 458 (Charge Sheet).  The charges preferred against the applicant are unknown. 

8.  On 6 April 1972, he underwent a separation physical examination and was found qualified for separation.  In item 73 (Notes) of his Standard Form 89 (Report of Medical Examination), dated 6 April 1972, he reported "I have good health."

9.  On 22 May 1972, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* He completed one year of good time and had 60 days of bad time
* He received 5 NJPs
* He was pending a special court-martial for being AWOL for 60 days
* He cannot adjust to military life
* Before he came into the Army he used a lot of drugs but he quit; however, he is still having flash backs
* If he stays any longer he will go AWOL again or get locked up in the stockade
* He doesn't care what kind of discharge he gets as long as he gets out  

10.  On 2 June 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

11.  He was discharged on 23 June 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He completed 
1 year and 15 days of total active service with 102 days of time lost.  

12.  There is no evidence of record which shows he was diagnosed with any mental problems prior to his discharge.

13.  On 26 March 1980, the Army Discharge Review Board denied the applicant's request for a general discharge.

14.  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.  

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.

16.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.
DISCUSSION AND CONCLUSIONS:

1.  He contends the only thing he did wrong was go AWOL for a week.  However, evidence shows he had 102 days of lost time due to AWOL during his enlistment

2.  Although his charge sheet is incomplete, the applicant indicated he was pending a special court-martial for a 60-day AWOL period.  In addition, his record of service included at least 4 NJP actions and a total of 102 days of time lost due to AWOL.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  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.  

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

5.  He contends he should have been medically discharged due to mental problems.  However, no evidence shows he was having mental problems in 1972 that interfered with his ability to perform his military duties or that this was the underlying cause for the misconduct that led to his discharge.  Medical evidence shows he was found qualified for separation on 6 April 1972 and he reported he was in good health.  Therefore, there was no basis for processing the applicant for a medical separation.

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)                                         AR20100022303





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ABCMR Record of Proceedings (cont)                                         AR20100022303



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