IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130001092 


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 DD Form 214 (Report of Separation from Active Duty) to show he received a medical or honorable discharge. 

2.  The applicant states he:

   a.  was mentally, physically and sexually abused when he was approximately 15 years old. 

   b.  masked his abuse of drugs and alcohol in order to convince the doctors that he was fit for active duty.

   c.  made it through training; however, his addiction escalated.  He further claims his misconduct was due, in part, because he did not receive treatment during his service.  Ultimately, he received help in 1996, which assisted him in remaining clean and sober to the present day.  

3.  The applicant provides:

* a self-authored statement
* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* Social Security Benefit Statement
* DA Form 669 (General Educational Development Individual Record)
* 3 pages of education transcripts
* numerous post-service certificates of completion
* Certificate of Marriage
* Record of Patient Instructions
* Post Procedure Instructions
* 4 letters
* Apprentice Work Process Record Book 

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 19 July 1974, as part of the enlistment process, the applicant completed a medical examination.  His record contains documentation in which he stated he was in excellent health and was currently taking no medications.  The applicant qualified for enlistment and he enlisted in the Regular Army on the same day.  He subsequently completed training and was awarded military occupational specialty 44B (Metal Worker).  

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 January 1975 for being absent without leave (AWOL) for the period 7 through 20 January 1975.

4.  Summary Court-Martial Order Number 1 published by Headquarters, Fort Sheridan, Fort Sheridan, IL, dated 11 April 1975, shows the applicant pled not guilty and he was found guilty of violating Article 128, UCMJ, for unlawfully striking a Soldier in the face with his fist on or about 28 February 1975.  On 11 April 1975, the following sentence was adjudged:  forfeiture of $75.00 pay per month for one month.

5.  The applicant received NJP under the provisions of Article 15, UCMJ, on 14 July and 15 December 1975, for failing to go to his appointed place of duty.

6.  The applicant received a letter of reprimand on 9 January 1976 for wearing his fatigue uniform in a liquor store on 31 December 1975.
7.  The applicant received NJP under the provisions of Article 15, UCMJ, on      12 May 1976, for failing to go to his appointed place of duty.

8.  On 12 July 1976, a local Bar to Reenlistment was imposed upon the applicant.

9.  The applicant was once again punished under the provisions of Article 15 of the UCMJ on 6 July 1976 for being AWOL for the period 24 through 25 June 1976.

10.  On 27 August 1976, the applicant was referred to and evaluated in the Community Mental Health Activity in connection with separation processing from the Army in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 13.  The examination found the applicant was cleared psychiatrically for any administrative action or disposition deemed appropriate by the command.

11.  On 28 October 1976, charges were preferred against the applicant for being AWOL for the period 13 through 15 September 1976 and for being AWOL for the period 20 September through 20 October 1976.  

12.  On 2 November 1976, the applicant 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 a discharge under other honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

13.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

14.  Records show the applicant underwent a separation medical evaluation and there was no evidence of diagnosis or treatment for drug or alcohol abuse or any other mental condition at the time of separation.   

15.  On 5 November 1976, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 10 November 1976, the applicant was discharged accordingly.  The DD Form 214 he was issued, later corrected by DD Form 215, shows he completed 2 years, 2 months, and 7 days of creditable active service with         46 days time lost.

16.  On 15 March 1984, after careful consideration of his case, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

17.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

19.  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.

20.  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's request was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant alleges that he was abusing drugs and alcohol throughout his enlistment and that he received no treatment for this problem during his service.  There is no evidence in his military records and the applicant has not provided sufficient evidence which shows he was diagnosed with or that he sought assistance with a drug or alcohol problem prior to his discharge.  Additionally, there is no evidence which shows the applicant's misconduct was a direct result of the alleged abuse of drugs and alcohol.  Therefore, this argument is not sufficient to support his request to change his reason for discharge to a medical discharge.

3.  The applicant's record shows a history of punishment under the UCMJ.  Ultimately, charges were preferred against the applicant for the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

4.  Evidence shows he 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.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge to either an honorable or a general discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.







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)                                         AR20130001092



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ABCMR Record of Proceedings (cont)                                         AR20130001092



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