BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023600 


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 (UD) be upgraded to an honorable or a general discharge.

2.  He states he was discharged due to a medical condition.  He is extremely claustrophobic and cannot fly in an airplane, be on a ship, or sleep in a tent.  He tried his very best to serve his country, but was unable due to his medical condition.  He was unable to perform some of the tasks that were required.  His discharge was not dishonorable; therefore, he is entitled to benefits.  He was discharged for the good of the service.

3.  He provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim)
* three letters in support of his medical conditions

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, an upgrade of the applicant's discharge and to be informed of all actions taken in the case.

2.  Counsel provides no statement or addition 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 military records show he enlisted in the Regular Army in pay grade E-1 on 26 November 1971 for 3 years.  He did not complete advanced individual training (AIT); therefore, he retained his military occupational specialty (MOS) of 09B (trainee).

3.  He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* 21 January 1972, for being absent without leave (AWOL) from 17 to 20 January 1972
* 23 February 1972, for failing to go to his appointed place of duty on 22 February 1972
* 17 March 1972, for being AWOL from 9 to 14 March 1972

4.  He was again reported AWOL on 27 March 1972 and dropped from the rolls on 25 April 1972.

5.  A Commander's Inquiry memorandum, dated 25 April 1972, stated an investigation had been conduced and there was no apparent reason for the applicant to be absent without authority.

6.  He was apprehended and returned to military control on 4 June 1972.

7.  On 5 June 1972, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 11th Battalion, 3rd AIT Brigade, U.S. Army Training Center, Fort Jackson, SC.  The applicant was charged with one specification of AWOL from 27 March through 4 June 1972.

8.  On 6 June 1972 after consulting with counsel, he voluntarily requested 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.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 7 June 1972, the Commander, 3rd AIT Brigade, strongly recommended approval of the applicant's request and the issuance of a UD.  The Commander stated the applicant was assigned to the unit on 11 February 1972.  He felt that based on the applicant's past record, he could in no way be of benefit to the military service.  His record of violations of Article 86, UCMJ, shows the applicant was not the type of Soldier needed by the Army.

10.  On 12 June 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UD Certificate.

11.  He was discharged accordingly in pay grade E-1 on 16 June 1972.  He was credited with completing 4 months and 5 days of net active service.

12.  There is no evidence the applicant requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.

13.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

14.  He provided three support letters stating it is probable that his disability is due to an anxiety disorder.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 stated 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 in lieu of trial by court-martial at any time after the charges were preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

16.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to an honorable or a general discharge due to his medical condition.

2.  The evidence of record shows he did not complete training for assignment of an MOS and he was never promoted beyond pay grade E-1.  The evidence also shows he received nonjudicial punishment under Article 15 on three occasions.  He was reported AWOL for the third time on 27 March 1972 and apprehended and returned to military control on 4 June 1972.

3.  The evidence of record also shows he voluntarily requested discharge in lieu of trial by court-martial upon his return to military control.  In his request, he acknowledged he could be issued a UD.  In recommending approval of the applicant's request for discharge for the good of the service, the AIT Brigade Commander stated the applicant's past record would in no way be of benefit to the military service and the applicant was not the type of Soldier needed by the Army.

4.  The documentation provided in support of his request was carefully considered.  However, he provided neither sufficient evidence nor a convincing argument to show his UD should be upgraded due to his medical condition at the time.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  The ABCMR does not grant relief by upgrading a discharge solely for the purpose of qualifying an applicant for medical or other benefits administered by the VA.

7.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100023600



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ABCMR Record of Proceedings (cont)                                         AR20100023600



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