IN THE CASE OF:	  

		BOARD DATE:	    7 April 2011

		DOCKET NUMBER:  AR20100024230 


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 to a general discharge.

2.  The applicant states:

* he was returned to regular duty too soon after a medical condition
* he was experiencing complications from the septoplasty operation
* after returning to duty he started having migraine headaches, nasal drainage and dizziness
* he was proud to have served in the Army and did not want to be discharged at the time

3.  The applicant provides:

* two clinical records, dated November 1971
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 29 January 1971 for a period of 2 years.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).

3.  On 1 November 1971, he underwent septoplasty surgery.

4.  Service medical records show he was hospitalized during the period 
28 December 1971 to 3 January 1972.  He was brought to psychiatric services because he was crying, anxious, and barely able to control himself.  On admittance, he was belligerent and uncooperative.  He was diagnosed with situational disorder complicated by use of amphetamines and cannabis sativa products and acute pharyngitis, etiology undetermined.  These medical records also state:

* he was seen twice before as an outpatient at psychiatric services
* on or about 23 November 1971, he bumped his nose causing him a great deal of pain
* he fell asleep and slept throughout the day and he was reported as being absent without leave
* since that time, he has been in and out of trouble with his unit and with the military police
* up until November 1971 his military record was clean
* he admitted to taking drugs for 4 years, taking lysergic acid diethylamide about 20 times, smoking marijuana and hashish, and taking amphetamines

5.  A DA Form 3647 (Clinical Record Cover Sheet), dated 3 January 1972, shows he was diagnosed with:
 
* moderate, acute, improved situational disturbance; premorbid personality and predisposition unknown precipitating stress
* drug abuse involving cannabis sativa products; premorbid personality and predisposition unknown precipitating stress

6.  His charge sheet is not available.

7.  On 11 January 1972 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 (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 might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf; however, his statement is not available.

8.  On 25 January 1972, he underwent a separation physical examination and was found qualified for separation.  Item 19 (Nose) of his Standard Form 88 (Report of Medical Examination), dated 25 January 1972, shows he was rated normal.

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

10.  A U.S. Army Europe (AE) Form 1107 (Bar to Enlistment/Reenlistment), dated 3 February 1972, states the applicant is presently pending charges under Article 86 (two specifications), Article 89 (one specification), Article 91 (one specification), Article 134 (three specifications), and that trial by special court-martial was recommended.

11.  On 4 February 1972, a bar to reenlistment was imposed against the applicant.

12.  He was separated with an undesirable discharge on 11 February 1972 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 1 year and 5 days of total active service with 8 days of lost time.

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

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, the 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 to 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.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was returned to duty too soon after a medical condition and he was experiencing complications from his operation.  However, medical records show after his operation he bumped his nose.  On 25 January 1972, he underwent a separation physical examination and was found qualified for separation.  His Standard Form 88, dated 25 January 1972, shows his nose was rated as normal.

2.  He contends he did not want to be discharged.  However, he voluntarily requested discharge in lieu of trial by court-martial.

3.  Although his charge sheet is not available, an AE Form 1107 shows numerous offenses for which special court-martial charges were preferred against him.  As a result, his record of service was not satisfactory.  The applicant's record of service is insufficiently meritorious to warrant a general discharge.

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



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)                                         AR20100024230



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ABCMR Record of Proceedings (cont)                                         AR20100024230



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