BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110012255 


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 upgraded.

2.  The applicant states:

* he wants his discharge upgraded so he can return to the Department of Veterans Affairs (VA) for treatment of schizophrenia, depression, diabetes, and hepatitis C
* he has suffered 2 strokes
* he lost a great deal of his memory from his last stoke
* he is unable to recall the circumstances of his second discharge

3.  The applicant provides page 73 of a VA Discharge Summary. 

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 enlisted in the Regular Army on 28 August 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty 52B (power generator equipment operator).  On 29 June 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 30 June 1970 for a period of 6 years.  

3.  Between 16 November 1970 and 10 August 1971, nonjudicial punishment was imposed against the applicant on four occasions for:

* failures to repair
* absent without leave (AWOL) on three occasions

4.  He went AWOL on the following dates:

* 2 July 1971 and returned to military control on 10 August 1971
* 13 August 1971 and returned to military control on 28 October 1971
* 31 March 1972 and returned to military control on 16 May 1972
* 21 July 1972 and returned to military control on 12 February 1973

5.  On 14 February 1973, charges were preferred against the applicant for the AWOL periods.

6.  On 22 February 1973 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  The separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.


8.  He was discharged on 9 April 1973 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He completed a total of 3 years, 6 months, and 10 days of total active service with 400 days of lost time.

9.  He provided page 73 of a VA Discharge Summary which states his past medical history includes:

* Diabetes mellitus
* Hepatitis C
* Major depression
* Schizophrenia
* Cerebrovascular accident of the right corona radiate in 2001
* Sickle cell trait
* Chronic low back pain secondary to lumbar disk disease
* Degenerative joint disease
* Obstructive sleep apnea 

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

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 VA 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.  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.

13.  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.  A discharge is not changed for the purpose of obtaining VA benefits.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

3.  Since his record of service during his last enlistment included four NJPs and 400 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general 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)                                         AR20110012255





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ABCMR Record of Proceedings (cont)                                         AR20110012255



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