IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110022413 


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 changed to a medical discharge under honorable conditions.

2.  The applicant states he has schizoaffective disorder and the first onset of symptoms occurred in advanced individual training (AIT) when he tried to kill himself with an overdose of drugs.  Due to his mental condition, he got into trouble several times.  He went to mental hygiene several times for help and was even hospitalized a couple of times for mental problems.  His records show he had emotional problems.  He was not in a healthy state of mind when he agreed to the chapter 10 discharge.  Recently, he has shown great improvement in his thinking and behavior and seems to finally have his condition under control.

3.  The applicant provides:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A DA Form 3022 (Report of Mental Status Evaluation)
* Three Standard Forms 600 (Chronological Record of Medical Care)
* Two DA Forms 4187 (Personnel Action)
* A memorandum

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 19 January 1978 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He completed basic training at Fort Knox, KY, and AIT at Fort Benning, GA.  He was assigned to the 2nd Battalion, 70th Armor Regiment, Fort Stewart, GA.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 27 March 1978, for being absent without leave (AWOL) from 23 March to 28 March 1978
* On 28 June 1979, for failing to go to his prescribed place of duty on 24 June 1979

4.  On 6 August 1979, he was reported as confined by civilian authorities in Jackson County Jail, WV, pending disposition of charges.

5.  On 9 August 1979, he was reported as present for duty as charges were dismissed without trial.

6.  On 3 April 1980, he was reported as AWOL from his assigned unit and was subsequently dropped from the rolls on 5 May 1980.

7.  On 27 May 1980, he surrendered to military authorities at Fort Stewart, GA.

8.  On 6 June 1980, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his prescribed place of duty on 6 June 1980.

9.  On 9 June 1980, court-martial charges were preferred against him for being AWOL from 3 April to 27 May 1980.




10.  On 11 June 1980, the applicant underwent a mental status evaluation.  The examining physician found the applicant had no mental disorder and determined his behavior was normal, he was fully alert, his thinking process was clear, his thought content was good, and his mood was mildly depressed.

11.  On 19 June 1980, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial.  He was advised that his offenses were punishable by a bad conduct discharge 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 available to him.

12.  Following consultation with legal 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.  He acknowledged he understood if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.  He elected not to provide a statement on his own behalf.

13.  On 24 June 1980, his immediate commander recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.  The commander stated the applicant lacked the maturity and emotional stability necessary to be a Soldier.  The applicant conveniently rationalized that his misconduct was not due to his own actions.  His AWOL, absence from guard duty, and failure to pay his just debts established a pattern of misconduct not conducive to military service.

14.  On 25 June 1980, his senior commander recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.  The commander stated the applicant's desertion combined with his previous performance did not warrant a discharge that would allow him the privilege of veteran's benefits.  His discharge would definitely be for the good of the service.

15.  On 9 July 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 21 July 1980, the applicant was discharged accordingly.  He completed 2 years, 4 months, and 7 days of creditable active service with 56 days of time lost.

16.  The DD Form 214 he was issued confirms he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under conditions other than honorable.

17.  His records do not indicate he suffered an injury or an illness during his military service that would have warranted his referral to the Physical Disability Evaluation System (PDES).

18.  On 27 June 1983 and 12 October 1983, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was equitable. 

19.  The applicant provides a Standard Form 600, dated 12 April 1978, which shows he was treated at the emergency room, Martin Army Hospital, Fort Benning, GA, on that date for a "medication overdose - conscious."  He was treated with Ipecac to induce vomiting, his condition was listed as satisfactory, and he was discharged on that date with a consult to mental hygiene.  

20.  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.

21.  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.

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.
23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 was charged with the commission of an offense 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 discharge to avoid 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.

2.  His record of service shows he was AWOL for 54 days at the time he returned to military control.  He received NJP on three other occasions for AWOL and failing to go to his prescribed place of duty.  Based on his 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 an honorable or a general discharge.

3.  With respect to a medical discharge, there is no evidence in his records and he did not provide any evidence that shows he was diagnosed with or suffered from any medical/mental condition while on active duty that limited his ability to perform in his grade/MOS or that would have warranted entry into the PDES.  In a mental status evaluation conducted on 11 June 1980, the examining physician found he had had no mental disorder.

4.  Additionally, the medical document he submitted shows he was treated for a medication overdose while in AIT; however, there is no evidence this was due a mental disorder or an attempted suicide.  He was evidently fit for duty as he subsequently completed AIT and was assigned to a permanent duty station.  

5.  In view of the foregoing, there is insufficient evidence to grant him 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)                                         AR20110022413





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ABCMR Record of Proceedings (cont)                                         AR20110022413



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