IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100025406 


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 changed to a general discharge or a medical discharge.

2.  The applicant states:

* The recruiter told him by enlisting for 3 years he would be able to choose a training course and he chose data processing
* After boot training he should not have gone any further once the heart murmur and asthma were discovered
* His inability to breathe would get him and others killed in Vietnam
* He went to his commanding officer to ask if they were serious about sending him to Vietnam with his medical conditions or if he could be switched to his data processing course
* His commanding officer said the recruiter's paper was a forgery and after that he went absent without leave (AWOL)
* After he was picked up for intoxication he was jailed at Fort Ord, he was handed a paper to sign indicating the Army no longer desired him and he no longer desired to be in the Army and, therefore, he signed it
* He was a stupid kid   

3.  The applicant provides no documentary 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 was born on 6 July 1952.  His enlistment contract shows he enlisted in the Regular Army on 29 April 1970 for a period of 3 years for Army Career Group (ACGP) 91 (Medical Care and Treatment).  He completed basic combat training.

3.  On 9 September 1970, while in advanced individual training (AIT), nonjudicial punishment (NJP) was imposed against him for being AWOL from 4 September 1970 to 9 September 1970.

4.  He went AWOL again on 9 October 1970 and returned to military control on 19 October 1970.  He went AWOL a third time on 23 October 1970 and returned to military control on 5 July 1971.  On 14 July 1971, charges were preferred against the applicant for these two periods of AWOL.  

5.  On 14 July 1971, 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 Undesirable Discharge Certificate, 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 laws.  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 enlisted sometime in 1970 for a period of 3 years
* He had about 6 months of good time, 9 or 10 months of bad time, and he had 2 and 1/2 years remaining
* He was pending charges for  a 9-month AWOL period
* Two weeks after he went AWOL he was picked up by civilian authorities and he had been held since that time
* He was convicted of breaking and entering and burglary
* He was convicted of burglary one other time
* He received two Article 15s for AWOL during AIT
* He started sniffing glue at age 13, he later used marijuana and abused alcohol, he started using "reds" at age 15 and also "sunshine acid," and he used heroin about 10 or 20 times
* While at Fort Sam Houston, TX he was sent to a psychiatrist three times but he doesn't know the results of his examinations  

6.  On 27 July 1971, he underwent a separation physical examination and was found qualified for separation.  He reported he was in "good health" on his Standard Form 93 (Report of Medical History), dated 27 July 1971, and in item 11 (Have you ever had or have you now) on this form the applicant marked "No" to asthma and heart trouble.  His Standard Form 88 (Report of Medical Examination) shows his nose, sinuses, lungs, and chest were "normal."

7.  On 6 August 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  On 10 August 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He completed 
5 months and 15 days of total active service with 297 days of time lost.  

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

10.  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.  
11.  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.

12.  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 he enlisted for training in data processing.  However, his enlistment contract shows he enlisted for ACGP 91 (Medical Care and Treatment).

2.  He contends he was a stupid kid.  However, age is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he completed basic training.   

3.  His record of service included one NJP action and a total of 297 days of time lost.  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.

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.  

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

6.  He contends he should have been medically discharged due to asthma and a heart murmur.  However, no evidence shows he was having medical problems in 1971 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 27 July 1971 and he reported he was in good health.  Therefore, there was no basis for processing the applicant through medical channels.


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)                                         AR20100025406



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ABCMR Record of Proceedings (cont)                                         AR20100025406



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