IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120005738 


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, in effect, upgrade of his general discharge to an honorable discharge by reason permanent physical disability.

2.  The applicant states that he was medically evacuated to Valley Forge Medical Center, PA from 21 April 1972 to 20 September 1972 and he was not absent without leave (AWOL).  He goes on to state he thought his discharge would be upgraded over time.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Discharge Certificate
* his summary of benefits from the Department of Veterans Affairs (VA), dated 9 January 2012

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 15 August 1969 for a period of 3 years and training as an engineer equipment operator and maintainer.  He completed his basic training at Fort Dix, NJ and his advanced individual training at Fort Belvoir, VA before being transferred to Germany on 20 April 1970 for assignment to an engineer company.

3.  On 21 April 1971, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being AWOL from 3 March to 16 March 1971.

4.  On 15 September 1971, he was convicted by a summary court-martial of being AWOL from 15 July to 1 August 1971.

5.  On 13 October 1971, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

6.  On 10 March 1972, he was admitted to the U.S. Army Hospital in Wuerzburg, Germany where he was diagnosed with improper use of hallucinogenics (hashish and LSD) and organic brain syndrome, psychotic type, recurrent, acute, moderate, manifested by psychotic and delusional thinking primary of a delusional nature.  A determination was made that his condition was not in the line of duty due to his own misconduct.

7.  On 8 April 1972, he was medically evacuated to Valley Forge General Hospital (VFGH) in Phoenixville, PA where he was diagnosed as having psychosis due to drug abuse manifested by delusions of persecution, constricted affect, and tangential speech.  The examining mental health official indicated the applicant had a history of drug abuse that began in November 1971.

8.  On 21 April 1972, he went AWOL and remained absent in desertion until he was returned to military control on 21 September 1972 and was transferred to Fort Dix.  He again went AWOL from 6 October to 11 October 1972.

9.  On 13 October 1972, charges were preferred against him for being AWOL from 21 April to 21 September 1972 and from 6 October to 11 October 1972.

10.  On 16 October 1972, after consulting with legal counsel, the applicant submitted a request for 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 indicated he was making the request of his own free will and without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and furnished an Undesirable discharge Certificate and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement or explanation in his own behalf.

11.  The separation authority (a major general) subsequently approved his request for discharge under the provisions of Army Regulation 635-200,
chapter 10.  He directed the applicant be furnished an Undesirable Discharge Certificate and reduced to the lowest enlisted grade.

12.  Accordingly, on 22 November 1972 he was discharged with an undesirable discharge.  He completed 2 years, 9 months, and 9 days of total active service with 184 days of time lost.

13.  On 21 February 1973, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade.  He stated that he had turned himself in for drug abuse and while at VFGH he was given a weekend pass and he did not return until he was picked by the local authorities in Utica, NY and was returned to military control at Fort Dix.  He contended he was supposed to get an honorable discharge, but because he went AWOL again he got an undesirable discharge.  On 19 September 1973, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request.

14.  The applicant again applied to the ADRB on 30 August 1979 for an upgrade of his discharge and contended he was sorry for his misconduct but his ability to serve was impaired by drug use.  On 2 December 1980, the ADRB accepted his contention and voted to upgrade his undesirable discharge to a general discharge.

15.  There is no evidence of record and the applicant did not provide any evidence that shows the applicant was ever considered for discharge for medical reasons or that he was deemed unfit for duty.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the Service.

	b.  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.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The disability must have been incurred while entitled to basic pay and not through one’s own misconduct.

18.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.
2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service to avoid a punitive discharge which may have resulted in a felony conviction on his record.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the seriousness of his offenses, his repeated misconduct, and his undistinguished record of service.  His service simply did not rise to the level of an honorable or a general discharge.

4.  Additionally, there is no evidence to show the applicant was deemed unfit for duty or that he was pending medical disability processing under the Physical Disability Evaluation System.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120005738



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ABCMR Record of Proceedings (cont)                                         AR20120005738



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