BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120007883 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states that due to the onset of a mental condition he should have been declared medically unfit.

3.  He provides three personal or character references and a letter from the Social Security Administration.

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 27 August 1973.

3.  His record contains a DD Form 458 (Charge Sheet) which shows he was charged with one specification of being AWOL from 26 November 1973 to 19 March 1974.

4.  On 26 March 1974, he voluntarily submitted a request for 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.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  The applicant acknowledged:

	a.  he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  he did not desire further rehabilitation or desire to continue in the military;

	d.  he acknowledged he understood if his request was accepted he could be issued an undesirable discharge certificate, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  he understood that once his request for discharge was submitted it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  he submitted a personal statement in his behalf, indicating he did not seem able to adjust to the military way of life.  Encountering personal problems; being away from his family; and staying with his brother, who had ten kids; and difficulties with his father were some of the reasons he went AWOL.  He also indicated he would go AWOL again if his chapter 10 was not approved, but he did not want to wait for a hardship discharge.  

5.  On the same date, his commander recommended approval of his request with the issuance of an undesirable discharge certificate.

6.  His record contains a Mental Status Evaluation, dated 28 March 1974, which states he had no significant mental illness, was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribes in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

7.  His record contains a copy of a Standard Form 88 (Report of Medical Examination), dated 28 March 1974, which shows in item 77 (Examinee) he had no medical defects and was qualified for separation.

8.  On 23 April 1974, the separation authority approved his 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, with the issuance of an Undesirable Discharge Certificate.

9.  On 22 May 1974, he was discharged accordingly.  The DD Form 214 (report of Separation from Active Duty) he was issued shows he completed 1 year, 3 months, and 25 days of total active service and had 126 days of time lost due to AWOL.
   
10.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  He submitted a letter on his behalf from the Social Security Administration, dated 8 March 2012, which indicates:

* the applicant's disability's onset date was 4 November 1997
* the primary medical diagnosis was affective mental disorder
* the secondary medical diagnosis was gastrointestinal hemorrhaging from any cause

12.  He submitted a third-party statement from his mother who indicates the applicant changed during his military service, got involved with drugs and alcohol, and was disgraced by the way he was discharged from the Army.

13.  The applicant submitted two third-party statements favorably attesting to his character.

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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate.

15.  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.

16.  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.  

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him 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 specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's record nor did the applicant submit any evidence showing he was medically unfit due to or struggled with a mental condition while he was on active duty.  Contrary to the third-party statement from his mother, there is no evidence showing he struggled with or sought help for drug or alcohol addiction during his period of service.  On the contrary, the evidence of record shows that after he was medically examined he was cleared for discharge.  

2.  The evidence of record shows the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.
3.  The evidence of record shows he had 126 days of lost time due to being AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The available evidence is not sufficient to support upgrading his discharge to a general or honorable 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)                                         AR20120007883





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ABCMR Record of Proceedings (cont)                                         AR20120007883



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