IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110006485 


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 that his under other than honorable conditions (UOTHC) discharge be changed to a medical discharge.

2.  He states that he should have received a medical discharge.  He attempted suicide and his civil rights were violated.  

3.  He provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 14 March 1977.  He completed training and was awarded military occupational specialty 11B (Infantryman).  

3.  On 29 June 1978, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 3rd Battalion, 19th Infantry, Fort Stewart, GA charging the applicant with:

* one specification of being AWOL from 1 to 21 June 1978
* two specifications each of failing to go to his appointed place of duty
* disobeying a lawful command from his commissioned officer
* disobeying a lawful order from his noncommissioned officer

4.  On 30 June 1978, 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 that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC Discharge 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 Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 6 July 1978, the applicant’s company commander recommended approval of the applicant’s request for discharge with the issuance of a UOTHC Discharge Certificate.  The unit commander stated the applicant had no desire to remain in the Armed Forces.  He felt many of the applicant’s offenses were based upon the applicant's wishes to get out of the service immediately.  The applicant was recalcitrant towards all efforts at counseling, disruptive to his unit, and he did not serve any useful function in the Army.

6.  On 13 July 1978, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be reduced to pay grade E-1 and the issuance of a UOTHC Discharge Certificate.

7.  On 20 July 1978, he was discharged in pay grade E-1 for the good of the service in lieu of trial by court-martial with a UOTHC discharge.  He was credited with completion of 1 year, 3 months, and 17 days of net active service and 20 days of time lost.


8.  On 20 January 1984, the Army Discharge Review Board denied his request for a change in the character and/or reason for his discharge.

9.  On 25 March 2010, the ABCMR denied his request for an upgrade of his UOTHC discharge to a general discharge.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation stated a member who had 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 had been preferred.  A UOTHC discharge was normally considered appropriate.  

11.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was 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.

12.  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.  

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 14 March 1977.  On 29 June 1978, he was charged with being AWOL and for failing to go to his appointed place duty (twice), and disobeying a lawful order from his commissioned office and noncommissioned officer.  He voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  He did not mention any medical conditions he was experiencing.  

2.  There is an absence of evidence to support his contentions for entitlement to a medical discharge.  There is no evidence he was found to be unfit by reason of physical disability during his period of active duty.  

3.  He has submitted neither evidence nor a convincing argument to show he had any medical conditions that would have amounted to a disability separation under the provisions of Army Regulation 635-40.  Therefore, he is not entitled to a medical discharge.

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)                                         AR20110006485



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ABCMR Record of Proceedings (cont)                                         AR20110006485



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