IN THE CASE OF:	  

		BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110005918 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he was in special education with Putnam City schools until October 1978 and he joined the military less than 3 months later.  He states he does not know how he passed the physical examination for entry in the military.  He adds that his personal file shows he did not obey orders.  He further states that because of his mental retardation he has a hard time following the simplest of commands.  He states that he has been receiving Supplemental Security Income (SSI) since 1989.  He continues by stating that he knows he has learning problems because he was born with fetal alcohol syndrome.  He states that he would like his discharge upgraded to a general discharge so he can receive medical treatment at Department of Veterans Affairs' medical centers.

3.  The applicant provides a Social Security Administration letter and Putnam City Schools Special Services letter.

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.  His military records show he enlisted in the Regular Army on 19 January 1979.

3.  His DA Form 2-1 (Personnel Qualification Record) shows average and above average aptitude area test scores.  This form shows he successfully completed basic and military occupational training as a radio operator.  The highest rank/grade he held was private/E-2.

4.  His records show he received numerous informal and formal counseling sessions for infractions including failure to: report for duty as directed, perform duties as directed, clean his living area, maintain adequate personal hygiene, launder his clothes with acceptable frequency, and maintain orderliness of his personal belongings in his living area.

5.  He accepted nonjudicial punishment (NJP) on two occasions during the period 21 August 1979 to 15 November 1979 for:

* being absent without leave (AWOL) during the period 8 to 9 August 1979
* failing to obey a lawful order from a superior noncommissioned officer (NCO) on three separate occasions

6.  Headquarters, 160th Signal Brigade Special Court-Martial Order Number 7 shows he was convicted by a special court-martial of:

* failing to go at the time prescribed to his appointed place of duty
* willfully disobeying a lawful order
* being disrespectful in language toward his superior NCO
* stealing US currency of a value of about $200, the property of another active duty Soldier

7.  On 17 September 1980, additional court-martial charges were preferred against the applicant for being AWOL.

8.  On 10 December 1980, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged he understood the elements of the offenses(s) charged and was guilty of the charge(s) against him or of a lesser-included offense(s) which also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He acknowledged he understood if his discharge request were approved he might be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He waived his rights and elected not to submit a statement in his own behalf.

9.  The applicant's complete discharge packet is not contained in his records.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows on 15 January 1981 he was discharged under the provisions of Army Regulation 635-200, chapter 10, administrative discharge - conduct triable by court-martial, with issuance of an under other than honorable conditions discharge.  His DD Form 214 shows he completed 1 year, 6 months, and 19 days of active service.  This form further shows he had lost time during the periods 14 February to 6 March 1980, 17 to 27 July 1980, and 4 August to 3 December 1980.

10.  The applicant provided a Social Security Administration letter, dated 1 March 2011, indicating he has an SSI disability code of 3180 which stands for mental retardation.

11.  He also provided a Putnam City Schools Special Services letter, dated 22 March 2011, indicating he received special education services from 1972 until 23 October 1978 when he withdrew.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  He contends that because of his mental retardation he has a hard time following the simplest of commands and that he knows he has learning problems because he was born with fetal alcohol syndrome.  Notwithstanding the Social Security Administration letter indicating he has an SSI disability code indicating mental retardation and the fact that he was in special education from 1972 until 1978 his military aptitude area test scores were higher than many Soldiers who successfully completed their military service.  His successful completion of initial military training provides further evidence that he was capable of successfully serving in the military.

2.  He contends that he does not know how he passed the physical examination for entry in the military but does not indicate a specific reason for or evidence to support this contention.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20110005918



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ABCMR Record of Proceedings (cont)                                         AR20110005918



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