IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110006779 


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 does not clearly state his request.  It appears he requests an upgrade of his discharge under other than honorable conditions or a medical discharge.

2.  The applicant states he was offered a medical discharge, but he refused.  He was sent to a psychiatrist during his active service.  However, he did not answer the questions truthfully or he was probably afraid.  Several doctors could not understand why "it did not show up sooner, usually around 18 or 19 years of age."  After his discharge, he was committed to a mental hospital and [his condition] dates back to his active service.

3.  The applicant provides no additional 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's records show he enlisted in the Regular Army on 2 February 1976 and he held military occupational specialty (MOS) 64C (Motor Transport Operator).

3.  He served in Germany from 5 July 1976 to on or about 8 June 1978.  He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  His records reveal a history of accepting nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 7 February 1977, for wrongfully operating a vehicle while drunk and wrongfully possessing marijuana
* on 17 March 1977, for wrongfully possessing hashish

5.  On 10 November 1977, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his prior misconduct.  The applicant was furnished with a copy of this bar and he submitted a statement on his own behalf in which he stated he felt he was being punished again by barring him for the same issues for which he was previously punished.  The bar was ultimately approved by the appropriate commander.

6.  His records reveal more NJP under the provisions of Article 15 of the UCMJ as follows:

* on 18 January 1978, for failing to go to his appointed place of duty
* on 17 May 1978, for failing to go at the time prescribed to his appointed place of duty

7.  On 8 June 1978, he departed his unit in an absent without leave (AWOL) status and on 7 July 1978 he was dropped from the Army rolls as a deserter.  He appears to have returned to military control on or about 1 March 1979.

8.  On 28 July 1978 while he was in a deserter status, his chain of command preferred court-martial charges against him for one specification of being AWOL.

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 1 March 1979 in lieu of trial by a court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) with an under other than honorable conditions character of service.  He completed 2 years, 11 months, and 9 days of creditable active service and he had 91 days of lost time.

10.  On 1 August 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

11.  There is no indication in the applicant's records that he was issued a permanent physical profile or had a medical condition that rendered him unfit for duty or warranted an MOS Medical Retention Board or that his medical condition warranted his entry into the Physical Disability Evaluation System (PDES).

12.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).

16.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain a charge sheet preferring court-martial charges against him for AWOL as well as a duly-constituted DD Form 214 that shows he was discharged in lieu of trial by a court-martial on 1 March 1979 under the provisions of chapter 10 of Army Regulation 635-200 with an under other than honorable conditions character of service.

2.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during his enlistment.

3.  With respect to a medical discharge, there is no evidence the applicant was diagnosed with a medical or a mental condition during his active service or that his alleged psychiatric issues would have warranted his referral to the PDES.  Additionally, there is no evidence in his records and he provides none to support his contention that he was offered a medical discharge but refused.  And finally, there is no evidence to support his claim or to show a correlation between his discharge in lieu of trial by court-martial and his alleged medical condition.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  _____x__  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20110006779



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ABCMR Record of Proceedings (cont)                                         AR20110006779



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