IN THE CASE OF:	  

		BOARD DATE:	    29 March 2012

		DOCKET NUMBER:  AR20110018506 


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 to honorable.

2.  The applicant states:

* The stress factor from military active duty and drug addiction was not taken into consideration
* He was not given any counseling during this era concerning his mental capacity to make life changing decisions

3.  The applicant provides 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 enlisted in the Regular Army on 25 October 1972 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13A (field artillery basic crewman).

3.  On 10 May 1973, nonjudicial punishment (NJP) was imposed against the applicant for failure to repair.

4.  He went absent without leave (AWOL) on 4 July 1973 and returned to military control on 8 August 1973.  He went AWOL again on 4 September 1973 and returned to military control on 6 October 1973.  On 17 October 1973, charges were preferred against the applicant for the AWOL periods.   

5.  His report of mental status evaluation shows:

* There was no significant mental illness noted
* He was mentally responsible
* He was able to distinguish right from wrong

6.  On 19 October 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 Veterans Administration (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 to submit a statement in his own behalf.  In summary, he stated:

* he wanted to get out of the Army because he did not like it
* he would go AWOL again to get out   

7.  On 12 November 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

8.  He was discharged on 20 November 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 10 months and 18 days of total active service with 68 days of lost time.

9.  There is no medical evidence of record which shows the applicant was diagnosed with drug abuse or dependency or any mental condition prior to his discharge.

10.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board 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.  Although he contends he was addicted to drugs, there is no medical evidence which shows he was diagnosed with drug abuse or dependency prior to his discharge.  




2.  He contends he was not afforded any counseling for mental issues.  However, there is no medical evidence which shows he was diagnosed with any mental condition prior to his discharge.  His report of mental status evaluation shows there was no significant mental illness noted, he was mentally responsible, and he was able to distinguish right from wrong.

3.  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.  

4.  Since his brief record of service included one NJP and 68 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)                                         AR20110018506





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ABCMR Record of Proceedings (cont)                                         AR20110018506



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