IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100028921 


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 correction of item 17c (Date of Entry) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 October 1973.  

2.  He also requests his undesirable discharge be upgraded to a general discharge or changed to a medical discharge.  He had previously requested that his undesirable discharge be upgraded.  

3.  The applicant states:

* both of his DD Forms 214 show the same entry date
* he had honorable service from 1970 to 1972
* he reenlisted in Germany in 1972
* his second enlistment was worse, but he was promised a general discharge under honorable conditions instead of a discharge under other than honorable conditions

4.  In a letter, dated 28 August 2010, he states:

* he was very immature and naïve in his expectations of what the Army could offer him
* he enlisted to get away from a bad family environment
* during his time in the service he was exposed to a lot of violence and things he could not imagine in a non-combat situation (accidental death of Soldier, fights, race riots)
* in 1972 he suffered a mental breakdown (post-traumatic stress disorder (PTSD)) and was placed on mind-altering medications
* he reenlisted in late 1972 and by early 1973 he started to self medicate with alcohol and was unable to perform his duties
* he began being absent without leave (AWOL)
* while in the stockade he decided to take the advice of a Judge Advocate General officer to resign for the good of the service
* he was led to believe that due to his prior honorable service he would be granted a general discharge or possibly a medical discharge
* he believes he is entitled to at least a general discharge or a medical discharge due to his mental state
* he needs these changes so he can get the proper benefits he is entitled to through the Department of Veterans Affairs

4.  The applicant provides his DD Forms 214 for the periods ending 19 October 1972 and 5 October 1973.

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 requested his undesirable discharge be upgraded.  This issue was previously considered by the ABCMR on 22 February 1995 per Docket Number AC94-11088 and denied.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's request and determined his request for a discharge upgrade was not received within 1 year of the ABCMR's original decision.  Additionally, his records show a request for reconsideration was denied on 10 January 2001.  As a result, his request pertaining to this issue does not meet the criteria for reconsideration.  Therefore, this portion of the applicant's request will not be discussed further in this Record of Proceedings.

3.  He was born on 15 November 1953.  His enlistment contract shows he enlisted in the Regular Army on 11 December 1970 for a period of 2 years.  He completed training and was awarded military occupational specialty 36K (field wireman).  On 19 October 1972, he was honorably discharged for immediate reenlistment.

4.  His DD Form 214 for the period ending 19 October 1972 shows:

* the entry "11 Dec 70" [11 December 1970] in item 17c
* he served 1 year, 10 months, and 5 days in items 22a(1) (Net Service This Period), 22a(3) (Total), and 22b (Total Active Service)
* the entry "3 days" in item 26a (Non-Pay Periods Time Lost)

5.  His enlistment contract shows he reenlisted on 20 October 1972 for a period of 3 years.

6.  A DD Form 458 (Charge Sheet) shows he was AWOL from 15 May 1973 to 21 June 1973 and 16 August 1973 to 7 September 1973.  Trial by special court-martial was recommended.  On 10 September 1973, he requested discharge in lieu of trial by court-martial.  On 1 October 1973, the separation authority approved his request for discharge.  He was discharged on 5 October 1973 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial.

7.  His DD Form 214 for the period ending 5 October 1973 shows:

* the entry "11 Dec 70" in item 17c
* he served 2 years, 5 months, and 27 days in items 22a(1), 22a(3), and 22b
* the entry "0  0  0" in item 22a(2) (Other Service)
* he had lost time from 18-20 January 1971, 2-30 April 1971, 15 May     1973 - 20 June 1973, and 16 August 1973 to 4 October 1973 in item 26a
* the entry "DAYS LOST UNDER TITLE 10, U.S. CODE, SECTION 972:  119" in item 30 (Remarks)

8.  On 2 July 1973, he underwent a mental status evaluation.  He was found mentally responsible and no significant mental illness was noted.

9.  On 11 September 1973, he was found qualified for separation and he reported he was in "GOOD HEALTH" on his Standard Form 93 (Report of Medical History).

10.  There is no evidence that shows he was diagnosed with PTSD or any other mental condition.

11.  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.

12.  Title 10, U.S. Code, chapter 61, provides for 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.  The entry on his enlistment contract which shows he reenlisted on 20 October 1972 for a period of 3 years is accepted as sufficient evidence on which to amend item 17c of his DD Form 214 for the period ending 5 October 1973.  Therefore, item 17c of his DD Form 214 for the period ending 5 October 1973 should be corrected to show his date of entry was 20 October 1972.

2.  Based on the foregoing correction, item 22a(1) of his DD Form 214 for the period ending 5 October 1973 should be corrected to show he served 7 months and 20 days; item 22a(2) should be corrected to show he served 1 year, 10 months, and 5 days; items 22a(3) and 22b should be corrected to show he served 2 years, 5 months, and 25 days; the entry "18 Jan 71-20 Jan 71" in item 26a should be deleted; and the entry "DAYS LOST UNDER TITLE 10, U.S. CODE, SECTION 972:  119" in item 30 should be corrected to show "DAYS LOST UNDER TITLE 10, U.S. CODE, SECTION 972:  116."

3.  He contends he should have been medically discharged due to his mental state.  However, no evidence shows he was having mental problems in 1973 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.  The medical evidence of record shows he was found mentally responsible and no significant mental illness was noted on 2 July 1973.  Therefore, there was no basis for processing the applicant for separation through medical channels.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 5 October 1973 as follows:

	a.  deleting the entry from item 17c and replacing it with "20 October 1972";

	b.  deleting the entry from item 22a(1) and replacing it with "0  7  20";

	c.  deleting the entry from item 22a(2) and replacing it with 1  10  5";

	d.  deleting the entries in items 22a(3) and 22b and replacing them with "2  5  25";

	e.  deleting the entry "18 Jan 71-20 Jan 71" from item 26a; and

	f.  deleting the entry "DAYS LOST UNDER TITLE 10, U.S. CODE, SECTION 972:  119" from item 30 and replacing it with "DAYS LOST UNDER TITLE 10, U.S. CODE, SECTION 972:  116."



2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a medical discharge.



      _____________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)                                         AR20100028921



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ABCMR Record of Proceedings (cont)                                         AR20100028921



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