BOARD DATE:  18 July 2013

		DOCKET NUMBER:  AR20130000002


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 discharge characterization, from under other than honorable conditions to honorable.

2.  The applicant states he suffered from undiagnosed depression while serving, which is now controlled by medication.

3.  The applicant provides:

* 2 copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* his Crisis Continuing Care Plan from Behavioral Health Services, St. Vincent Regional Medical Center, Santa Fe, NM
* a letter from the Assistant State Service Officer, Veterans of Foreign Wars (VFW) Department Service Office and Department of Veterans Affairs (VA) Regional Office, State of Illinois, dated 19 September 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.  On 17 November 1970, the applicant was inducted into the Army of the United States.  He completed his initial entry training and was awarded military occupational specialties 71B (Clerk) and 71U (Card and Tape Writer).  The highest rank/grade he attained during his period of military service was private first class/E-3.

3.  Upon his completion of initial entry training, he was assigned to Company C, 701st Maintenance Battalion, at Fort Riley, KS.

4.  On 13 May 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his assigned unit (absent without leave (AWOL)), from on or about 8 May 1971 through on or about 13 May 1971.

5.  Item 44 (Time Lost Under Section 972, Title 10, United States Code (USC) and Subsequent to Normal Date ETS (Expiration Term of Service)) of his DA Form 20 (Enlisted Qualification Record) shows his unit reported him as AWOL on 6 July 1971.

6.  On 9 August 1971, his unit again reported him as AWOL.  

7.  On or about 7 September 1971, he was dropped from the rolls of the Army.  

8.  On or about 6 March 1972, he was returned to military control at Fort Carson, CO.

9.  On 7 March 1972, court-martial charges were preferred against him for being AWOL from on or about 9 August 1971 through on or about 6 March 1972.

10.  On 15 March 1972, he underwent a mental status evaluation at Mental Health Consultation Services, U.S. Army Hospital, Fort Carson, CO.  On his DA Form 3822-R (Report of Mental Status Evaluation), the chief of the Department of Psychiatry noted no psychiatric disorders or other issues, including depression.  

11.  On 17 March 1972, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, 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 (Personnel Separations – Enlisted Personnel), chapter 10.

12.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

13.  Also on 17 March 1972, his battalion commander interviewed him regarding his discharge from the Army.  In his hand-written notes, his battalion commander stated:

[Applicant] fully understands the seriousness of an undesirable discharge and the loss of VA benefits, especially in the educational field.

[Applicant] was drafted – he claims to be a conscientious objector, based not on religion but on morality.  [Applicant] applied to his draft board attempting to obtain 'CO' status but was denied.  He has not so applied since being drafted – and he doesn't want to do so at this time.  He simply wants out of the Army because of the Army's violation of his self-established moral code.

[Applicant's] poor attitude toward continued military service prohibits rehabilitation in the Army.  

14.  On 28 March 1972, the separation authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

15.  On 3 May 1972, he was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 6 months and 3 days of total active service, with approximately 186 days of lost time due to being AWOL. 

16.  His record does not contain any documentation that indicates he was treated for depression during his period of military service.

17.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

18.  He provides his Crisis Continuing Care Plan from Behavioral Health Services, St. Vincent Regional Medical Center, Santa Fe, NM, which shows he received past counseling for rejection he experienced in many forms throughout his life.  This form does not indicate he was prescribed any medication to assist in his treatment of this condition.

19.  He further provides a letter from the Assistant State Service Officer, VFW Department Service Office and VA Regional Office, State of Illinois, dated         19 September 2012.  In this letter, the Assistant State Service Officer, acting as the applicant's representative counsel, pleads for the Board's compassion on the applicant, based on the difficult moral stance he chose at the time. 

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

   a. 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.

   b. 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 discharge should be upgraded because he suffered from depression during his period of military service.  The evidence of record does not support this contention.  His record is void of any documentation that shows he was identified with, or treated for, depression during his period of military service.

2.  His record indicates he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors that 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.  His discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, including an extended period of AWOL throughout his period of military service, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is entitled to neither a general nor an 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 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130000002



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