IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110025079 


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 an upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

	a.  He requested to be discharged due to what he thought was depression.

	b.  He enlisted in the U.S. Navy in 1973 when he was 16 1/2 years old.  His Navy DD Form 214 (Report of Separation from Active Duty) shows his date of birth as 25 November 1954, but it is actually 25 November 1956.

	c.  He does not believe he received fair treatment from his Navy petty officer first class.  He was diagnosed with post-traumatic stress disorder in June 2011 due to the treatment he received while stationed on the U.S.S. Truxtun.  The petty officer first class made his life a living hell.  He was harassed by him verbally and physically.  He became depressed and started using drugs.  He was discharged from the Navy in 1975.

	d.  He went home and tried to work, but he lost every job he had because of his anger problem.  He could not hold down a job so he enlisted in the U.S. Army.  He continued to take drugs.  In 1979, his depression had gotten so bad that he asked to be released from the Army.

	e.  He should not have been allowed to enter the military at his age.  He believes he was too young to handle the problems that he encountered and he turned to drugs for help.

3.  The applicant provides:

* DD Forms 214 for the periods ending 19 February 1975, 12 July 1978, and 19 July 1979
* birth certificate

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 DD Form 214 for the period ending 19 February 1975 shows:

* his birth date as 25 November 1954
* he enlisted in the U.S. Navy on 20 February 1973
* he was honorably released from active duty on 19 February 1975

3.  His Regular Army enlistment document shows his birth date as 25 November 1956.  He enlisted in the Regular Army on 12 November 1975 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewman).  On 12 July 1978, he was honorably discharged for immediate reenlistment.  He reenlisted on 13 July 1978 for a period of 3 years.

4.  On 28 February 1979, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 6 February 1979 to 27 February 1979.

5.  He was AWOL on 12 March 1979 and returned to military control on 25 June 1979.  On 27 June 1979, charges were preferred against the applicant for the AWOL period.

6.  On 27 June 1979, he consulted with counsel and requested 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.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

7.  On 27 June 1979, he underwent a mental status evaluation and was found to be mentally responsible.  No significant mental illness was noted.

8.  On 12 July 1979, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions.

9.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 19 July 1979 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 3 years, 3 months, and 4 days of creditable active service with 124 days of lost time.

10.  There is no evidence that shows he was diagnosed with drug abuse or dependency prior to his discharge on 19 July 1979.

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

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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he requested to be discharged for depression.  However, evidence shows he consulted with counsel on 27 June 1979 and voluntarily requested discharge for the good of the service.  He underwent a mental status evaluation on 17 June 1979 and no significant mental illness was noted.

2.  His contentions pertaining to the Navy petty officer first class were noted.  However, these issues/complaints relate to his service in the Navy, not the Army.

3.  He believes he was too young to handle the problems that he encountered and he turned to drugs for help.  However, age is not a mitigating factor.  His records show he was almost 19 years of age when he enlisted in the Regular Army and he completed his training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, there is no evidence of record that shows he was diagnosed with drug abuse or dependency prior to his discharge.  In any case, he could have referred himself for treatment.

4.  His record of service during his last enlistment included nonjudicial punishment and 124 days of lost time.  As a result, his record of service 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.

5.  His voluntary request for discharge 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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

6.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20110025079



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ABCMR Record of Proceedings (cont)                                         AR20110025079



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