IN THE CASE OF:	 

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120002270 


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 to a medical or general discharge.

2.  He states he was very young and not as mature as he is today.  His wife and children were not with him and he was having problems at home.  He was extremely depressed and had severe mental and emotional problems.  He asked for but did not receive any help.  The Army failed in its obligation to properly care for him.  He adds that it is difficult to find employment and he is not eligible for Department of Veterans Affairs benefits.  He states that under the circumstances and two prior honorable discharges, he believes he should have received a medical or general discharge.

3.  He provides:

* two DD Forms 214 (Report of Separation from Active Duty) 
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Standard Form 513 (Clinical Record)
* extracts of two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice)

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 was born on 13 March 1956.  His military records show he enlisted in the Army National Guard on 16 December 1975 at nearly 20 years of age.

3.  His DD Form 214 for the period ending 1 June 1976 shows he was honorably released from active duty after completing initial entry training.  He was awarded the military occupational specialty of 11B (Infantryman).  The highest rank/grade he held was private/E-2.

4.  On 28 June 1977, he was honorably discharged from the Army National Guard and involuntarily ordered to active duty for 19 months and 24 days under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 12b, due to failing to fulfill satisfactory participation requirements.  He entered active duty on 29 June 1977.

5.  He accepted nonjudicial punishment (NJP) on 18 July 1977 for, through design, missing movement to an overseas destination and being absent without leave during the period 14 July to 17 July 1977.

6.  He submits a Standard Form 513, dated 27 July 1977, showing he reported to the troop medical clinic asking for help.  The reason for the visit shows he stated he jumped out of a second floor window the previous night in an attempt to kill himself.  He stated he was hearing his children crying and talking to him.  The form further indicated he did not need medication or hospitalization.  His medical records are not available to the Board.

7.  On 6 September 1977, court-martial charges were preferred against him for behaving with disrespect toward a superior commissioned officer by willfully refusing to respond or render the hand salute, breaking restriction, and willfully disobeying a lawful command to report for duty.

8.  On 6 September 1977, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he understood he could request a discharge for the good of the service because charges had been preferred against him which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he understood he had been advised of the implications attached to his request.  He acknowledged he understood the elements of the offenses(s) charged.  He stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He acknowledged he understood if his request were approved he might be discharged under other than honorable conditions.

9.  He waived his rights.  There is no evidence to show he elected to submit a statement in his own behalf. 

10.  On 7 September 1977, his commander forwarded his request for discharge.  His commander stated the applicant had been a constant problem since coming to the unit.  He had no motivation and no military skills.

11.  On 15 September 1977, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed the issuance of a discharge under other than honorable conditions.

12.  On 3 October 1977, he was discharged accordingly.  The DD Form 214 he was issued shows he completed 3 months and 5 days of active service during this period.

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

14.  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.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states 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.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of a physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states the mere presence of impairment does not in and of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

17.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.

18.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's age at the time of his enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  His records show he received NJP on two occasions.  He was charged with behaving with disrespect toward a superior commissioned officer by willfully refusing to respond or render the hand salute, breaking restriction, and willfully disobeying a lawful command to report for duty.

3.  He voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200, after being charged with an offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.  The records contain no indication of procedural or other errors that would have jeopardized his rights.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  He was properly and equitably discharged and therefore he is not entitled to a general discharge.  

4.  He submits a Standard Form 513 which indicates he visited a troop medical clinic and asked for help following bouts of crying and an alleged attempt to commit suicide by jumping out of a second floor window.  While he contends the Army did not properly care for him during a depressing time and having had severe mental and emotional problems related in part to his wife and children not being with him, the form stated the applicant did not need medication or hospitalization.  There is no evidence he was medically unable to perform training or other duties and there is no evidence that a mental disorder was diagnosed.  Therefore, he has not established a basis to support a medical discharge.

5.  The fact that he was honorably released from active duty upon completion of initial entry training and honorably discharged from the Army National Guard preceding an involuntary order to active duty due to failing to fulfill satisfactory participation requirements is not sufficiently mitigating to change a properly-issued discharge.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' benefits or to improve his or her employment opportunities.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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 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)                                         AR20120002270



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ABCMR Record of Proceedings (cont)                                         AR20120002270



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