IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120012248 


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 discharge characterized as under other than honorable conditions be changed to a medical discharge.

2.  He states he joined the Army because of a bad love affair and drinking problems.  He maintains his performance was average during basic training until he took some acid and had a bad trip.  He adds he remained paranoid for years after the acid and continued to drink and do drugs.  When he asked for help he got counseled.  He believes based on his erratic behavior someone should have known something was wrong with him, but their solution was a bad discharge.  He continues by citing his achievements since his discharge and offers that he is a member of Alcoholics Anonymous and has not had a drink in 20 years.

3.  He provides his self-authored statement and a letter from an American Legion Representative, dated 20 July 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's record shows he enlisted in the Regular Army on 3 November 1972.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) for the following offenses:  

* 23 February 1973, failing to go at the time prescribed to his appointed place of duty on two separate occasions
* 4 April 1973, for being absent without leave (AWOL) from 19 to 28 March 1973 and failing to go at the time prescribed to his appointed place of duty

4.  On 11 April 1973, he underwent a medical examination for the purpose of discharge.  He stated that he was in good health.  The physician determined that he was qualified for separation in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, unsuitability.

5.  On an unknown date he underwent a mental status evaluation that found the following:

* Behavior - Passive Aggressive
* Level of Orientation - Fully Oriented
* Mood - Hyperactive
* Thinking Process - Clear
* Thought Content - Normal
* Memory - Fair
* Impression - No significant mental illness - inability to adjust
* Individual is mentally responsible - Yes
* Individual is able to distinguish right from wrong - Yes
* Individual is able to adhere to the right - Yes
* Individual has the mental capacity to understand and participate in board proceedings - No
* Individual meets the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) - Yes

6.  On 23 May 1973, charges were preferred against him for being AWOL from
4 to 22 May 1973 and failing to go at the time prescribed to his appointed place of duty.

7.  On 5 June 1973, he consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200.

8.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all Veterans' Administration benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

9.  On 21 June 1973, the appropriate authority approved his request for discharge for the good of the service in lieu of trial by court-martial and directed the issuance of an undesirable discharge.

10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with a characterization of service listed as under other than honorable conditions on 29 June 1973.  He completed 6 months and 23 days of creditable service with 34 days listed as lost time.

11.  The applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 20 July 1979, the ADRB denied his request for a discharge upgrade.

12.  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 interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is an indication the individual is fit.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that on an unknown date the applicant underwent a mental status evaluation which indicated he did not have the mental capacity to understand and participate in board proceedings and at the same time indicated that he had no significant mental illness.  Additionally, a separation examination conducted on 11 April 1973 by a competent medical authority determined he was medically qualified for separation.  Further, the applicant acknowledged that he was in good health.

2.  Nevertheless, there is no evidence in his available record and he has provided no evidence to show he was physically unfit to perform his duties at the time of separation.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

3.  Additionally, the fact that the applicant is a member of Alcoholics Anonymous and has not had a drink in twenty years is commendable.  However, good post-service conduct alone is not normally a basis for changing a discharge.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the change.

4.  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 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)                                         AR20120012248



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012248



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1