IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120006414 


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 (UD) be upgraded to a general discharge (GD).  He also requests that his military record be corrected to show his intelligence quotient (IQ) level.

2.  The applicant appears to state, in effect, that he was suffering from some sort of mental illness or mental retardation at the time he entered active service.  He alleges the military knew of his problems at the time of induction yet he was accepted.  He states he believed he was being discharged for illiteracy and he was told he would receive a GD.  

3.  The applicant provides a copy of 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 8 July 1974 and did not complete advanced individual training.

3.  The applicant is shown to have been absent without leave (AWOL) from
25 - 26 August 1974.  He departed AWOL a second time from 16 September to 10 November 1974 and his second period of AWOL ended with apprehension by civilian authorities.  He was returned to military control on 12 November 1974 and placed in pretrial confinement.  

4.  On 21 November 1974, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he understood if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.  In a personal statement the applicant indicated he just didn't fit in and he wanted to be discharged.

5.  The discharge authority approved the separation request and directed the issuance of a UD.  

6.  The applicant was discharged on 27 November 1974 with a UD.  He had 
68 days of creditable service with 74 days of lost time.

7.  Neither the applicant's enlistment record nor separation physical examination show evidence of mental health problems or mental retardation.  There are no IQ test scores in the available record.  His DA Form 2-1 (Personnel Qualification Record) does record his general technical (GT) score as 84.

8.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

   a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  However, at the time the applicant was discharged a UD was considered appropriate;

   b.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty; and

   c.  a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The available record does not contain any evidence and the applicant has not provided any evidence that shows he had a mental health condition that affected his ability to serve in the military or that military personnel were aware of such a condition and allowed him to enlist.  

2.  Furthermore, absent convincing evidence that the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that affected his ability to tell right from wrong, and adhere to the right, a mental health problem does not demonstrate an error or an injustice in the discharge action.

3.  There is no evidence that the applicant was told he would receive a GD or that he believed he was being discharged due to illiteracy.  To the contrary, he requested discharge for the good of the service in lieu of trial by court-martial, and he was informed he could receive an Undesirable Discharge Certificate.  The applicant had more lost time than creditable service; therefore, his service cannot be considered to have been satisfactory warranting either a general or honorable characterization of service.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant's character of service is commensurate with his overall record of military service.

5.  The applicant's DD Form 214 contains no place for recording IQ or Army test scores.  The applicant may obtain a copy of his military records or authorize the Department of Veterans Affairs to do so by submitting a request on a Standard Form 180 (Request Pertaining to Military Records) to the records storage depot.  If the test scores he seeks are available they will be contained within those records.  

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)                                         AR20120006414



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ABCMR Record of Proceedings (cont)                                         AR20120006414



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