IN THE CASE OF:	  

		BOARD DATE:	 30 July 2013 

		DOCKET NUMBER:  AR20120022597 


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:

	a.  correction of item 9d (Effective Date) of his DD Form 214 (Report of Separation from Active Duty) for the period ending 27 February 1975;

	b.  correction of item 15 (Date Entered Active Duty This Period) of his 
DD Form 214 for the period ending 4 May 1978; and

	c.  his discharge under other than honorable conditions be upgraded to under honorable conditions (a general discharge).

2.  The applicant states:

* he wants his DD Form 214 for the period ending 27 February 1975 to correctly reflect his 3-year commitment/enlistment
* his first period of service should have been from 31 October 1972 through 4 November 1975 based upon his 3-year enlistment, making his second period of service beginning on 5 November 1975
* he wants his discharge under other than honorable conditions changed to under honorable conditions
* his mental condition began in his first period of service, but he has been denied medical treatment because of the type of discharge he received for his second period of service
* a sympathetic reading of his service records will show his mental condition began during his first period of service
3.  The applicant provides Department of the Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), dated 20 August 2012 and 30 November 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 enlistment contract shows he enlisted in the Regular Army (RA) on 31 October 1972 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13B (field artillery crewman).  On 
27 February 1975, he was honorably discharged for immediate reenlistment.   

3.  Item 9d of his DD Form 214 for the period ending 27 February 1975 shows the entry "75  02  27" (27 February 1975).

4.  He reenlisted on 28 February 1975 for a period of 3 years.

5.  Between 1 April 1975 and 15 September 1977, nonjudicial punishment (NJP) was imposed against him on four occasions for:

* assault
* failure to go to his appointed place of duty
* drunk and disorderly conduct
* being derelict in the performance of duty (sleeping on guard duty) 

6.  He went absent without leave (AWOL) on 27 November 1977 and returned to military control on 5 April 1978.  On 13 April 1978, charges were preferred against him for the AWOL period.  Trial by special court-martial was recommended.




7.  On 14 April 1978, he consulted with counsel and requested 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.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf. 

8.  On 27 April 1978, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions. 

9.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 4 May 1978 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 5 years, 1 month, and 20 days of creditable active service with 129 days of lost time. 

10.  Item 15 of his DD Form 214 for the period ending 4 May 1978 shows the entry "75  02  28" (28 February 1975).

11.  There is no evidence that shows he was diagnosed with a mental condition prior to his discharge. 

12.  On 6 June 1988, the Army Discharge Review Board denied his request for a general discharge. 

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

14.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his first period of service should have been from 
31 October 1972 to 4 November 1975 based upon his 3-year enlistment and item 9d of his DD Form 214 for the period ending 27 February 1975 should be corrected to show 4 November 1975.  However, evidence shows:

* he enlisted in the RA on 31 October 1972 for a period of 3 years
* he was honorably discharged on 27 February 1975 for immediate reenlistment
* he reenlisted on 28 February 1975 for a period of 3 years 

2.  Since there is no evidence which shows he was discharged on 4 November 1975, and item 9d of his DD Form 214 for the period ending 27 February 1975 properly shows his effective date of discharge was 27 February 1975, there is insufficient evidence on which to amend item 9d of his DD Form 214 for the period ending 27 February 1975. 

3.  He also contends his second period of service should have begun on 
5 November 1975 and item 15 of his DD Form 214 for the period ending 4 May 1978 should be corrected to show this date.  However, there is no evidence which shows he entered active duty on 5 November 1975.  Since evidence shows he reenlisted on 28 February 1975, and item 15 of his DD Form 214 for the period ending 4 May 1978 properly shows he entered active duty on 
28 February 1975, there is insufficient evidence on which to amend item 15 of his DD Form 214 for the period ending 4 May 1978.  

4.  The applicant contends his mental condition began in his first period of service.  However, there is no evidence of record and he provided no evidence that shows he was diagnosed with a mental condition prior to his discharge.  

5.  His record of service during his second enlistment included four NJPs and 129 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge. 


6.  His voluntary 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, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so. 

7.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case. 

8.  In view of the foregoing, there is no basis for granting the applicant's requests. 

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)                                         AR20120022597





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ABCMR Record of Proceedings (cont)                                         AR20120022597



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