IN THE CASE OF:	  

		BOARD DATE:  7 February 2012

		DOCKET NUMBER:  AR20110015792 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states the following:

	a.  He believes his medical records will show he sustained a traumatic brain injury (TBI) while in the Army and that this caused the mental and financial problems that led to the charges against him.  He believes if he was in the Army today his TBI would be recognized and treated. 

	b.  His problems began when he arrived at Fort Stewart, GA.  The first sergeant (1SG) called him "boy" and he told the 1SG that was not his name.  The next day, the section sergeant told him he was the "wrong color" to be in the company.  He saw more prejudice in that company then he did in the time he spent in Germany.  Anything he did was wrong.  

	c.  He did not disobey a lawful order, he could not be in two places at one time.  His lawyer told him to go to the motor pool and sit down.  He did pull guard duty so he doesn't know why they said he didn't.  He was told he disobeyed a lawful order by not fixing a tire on a truck, but he was not assigned a vehicle.  The driver of the vehicle should work on the vehicle and he thought it was not safe to drive.  He did not change the DD Form 698 (Individual Sick Slip); one of his roommates must have done it as a joke.  He was reduced from E-4 to E-2, forfeited $250.00 pay for 2 months, and he had extra duty for 45 days.

3.  The applicant provides:

* Standard Form 93 (Report of Medical History)
* Standard Form 88 (Report of Medical Examination)
* Three statements of support
* Two letters

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 21 February 1979 and he held military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  

3.  On 10 May 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty and being disrespectful towards a noncommissioned officer (NCO).

4.  On 1 September 1981, he was assigned to the 609th Transportation Company, Hunter Army Airfield (HAAF), GA.

5.  His available medical records show he was seen at the Tuttle Army Health Clinic, HAAF on 4 September 1981, for a sprained right ankle.  A cast was put on his ankle and he was prescribed medication for the pain.  On 10 September 1981, he was seen for a complaint of numbness on the right side of his face and he requested a change of his MOS.  The examining doctor noted the applicant would be referred to internal medicine.  On 15 September 1981, his cast was removed and he was given a 14 day profile for no running and no physical training.

6.  On 17 September 1981, he received NJP under the provisions of Article 15, UCMJ, for unlawfully altering his sick slip and being disrespectful towards an NCO.

7.  On 17 November 1981, court-martial charges were preferred against him for four specifications of passing bad checks, one specification of disobeying a lawful order, and one specification of failing to go to his appointed place of duty.

8.  On 17 November 1981, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

10.  On 20 November 1981, he received a mental status evaluation.  The examining psychiatrist found the applicant's behavior normal, his mood depressed, and his thinking process clear.  He determined the applicant demonstrated no significant psychopathology that warranted disposition through medical channels and cleared the applicant for any administrative action the command deemed appropriate.

11.  On 23 November 1981, in conjunction with his separation physical, the applicant completed Standard Form 93 wherein the doctor noted the applicant stated he had chronic headaches and sinusitis.  He also had experienced trauma on the right eyebrow area of his face a year and a half earlier resulting in the loss of feeling in that area, he had nervous spells, and he was seeing a psychiatrist.  

12.  There is no evidence in his medical record that shows he was ever seen by a psychiatrist other than the one that completed the applicant's mental health evaluation on 20 November 1981.

13.  On 23 November 1981, the examining physician completed Standard Form 88 wherein he noted the applicant had a scar on his right eyebrow and listed the applicant's summary of defects as "a chipped bone in right ankle, being followed up, currently seeing a psychiatrist for nervous spells, and chronic headaches with sinusitis."  The applicant was cleared for a chapter 10 discharge.

14.  On 2 December 1981, the applicant's immediate commander recommended approval of his request for discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He stated that since the applicant's arrival at the unit he had been a disruptive influence on the members of the unit. 

15.  His intermediate and senior commanders subsequently recommended approval of his request for a discharge with the issuance of an under other than honorable conditions discharge.

16.  On 4 December 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

17.  On 14 December 1981, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of conduct triable by court-martial with a under other than honorable conditions characterization of service.  He completed 2 years, 9 months, and 21 days of creditable active service with 3 days of time lost.

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

19.  On 18 October 2001, the ABCMR denied his request for an upgrade of his discharge to an honorable discharge.

20.  The applicant provides three statements of support, dated 18 August 1987, 24 July 2000, and 20 February 2002, written by a police chief, a friend, and a reverend, respectively, wherein they stated the applicant is a good worker, volunteers in the community, and is a responsible person.

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

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he sustained a TBI while in the Army and this was the cause of his mental and financial problems that led to the charges against him. 

2.  There is no evidence in the applicant’s records and he has not provided any evidence that shows he sustained a TBI while he was on active duty, that he was ever treated by a psychiatrist for nervous spells, or that he was treated for chronic headaches and sinusitis.  The examining doctor noted these conditions on the applicant's discharge physical based on what he was told by the applicant.  In addition, although it was noted that the applicant had a facial scar, there is no evidence that this scar resulted from trauma that occurred while he was on active duty or that it resulted in a medical/mental condition.  

3.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  His record of service shows he received NJP for failing to go to his place of duty, altering a sick slip, and on two occasions for being disrespectful towards an NCO.  In addition, he passed bad checks on four different occasions, disobeyed a lawful order, and failed to go to his appointed place of duty which was the basis for the court-martial charges.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20110015792



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110015792



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1