IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120021100 


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 correction of his records to show his under other than honorable conditions discharge was upgraded to a general discharge and that his narrative reason for separation was changed to show he was discharged due to medical conditions.

2.  The applicant states:

* he believes he had psychiatric problems which led to his substance abuse issues
* he received psychiatric treatment while he was on active duty
* after being discharged from the base hospital psychiatric unit in Panama he was told to sign a medical waiver or face a court-martial
* after he signed the medical waiver he was discharged under other than honorable conditions

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 10 March 1980.  He completed training as a fire support specialist.

3.  The applicant was enrolled in the Alcohol Drug Abuse Prevention and Control Program (ADAPCP) on 12 September 1981.  His DA Form 4465 (ADAPCP Client Intake Record) shows he was command referred.  His DA Forms 4466 (ADAPCP Client Progress Report) show he was not progressing.  His efficiency was satisfactory, but his conduct was unsatisfactory.

4.  The applicant accepted nonjudicial punishment (NJP) on three separate occasions between 22 August 1980 and 22 July 1982 for failure to go to his appointed place of duty and for engaging in a fist fight.

5.  On 20 November 1982, he was convicted by a summary court-martial of failure to go to his appointed place of duty and for willfully destroying U.S. military property.

6.  The applicant's medical records show he was taken to the emergency room on 21 November 1982 for a medical evaluation.  He was diagnosed as being healthy and fit for confinement.

7.  On 28 April 1983, the applicant was notified that charges were pending against him for the following offenses:

* being absent without leave (AWOL) from 22 to 30 March 1983
* breaking restriction
* possessing some amount of marijuana
* carrying a concealed weapon
* communicating a threat to another Soldier


8.  He acknowledged receipt of the notification for discharge.  On 3 May 1983, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

9.  On 5 May 1983, the appropriate authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge.

10.  On 11 May 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 3 years and 1 month of net active service this period.

11.  On 2 November 1984, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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

13.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

14.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  There is no evidence in the available record that shows he was suffering from any condition that would have required him to be processed for discharge through medical channels.  Therefore, it is concluded that his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20120021100



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021100



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1