IN THE CASE OF:	  

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130002889 


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 undesirable discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he originally accepted the discharge based upon a series of adverse internal motivations on his part and more important, adverse external motivations and lack of needed support and involvement from all levels of the military command.  He attests the primary basis for his discharge was his state of severe depression brought on by an infection and disease he contracted while serving in the military.  He was subsequently alienated and ostracized by other Soldiers having knowledge of his condition.  This caused a detachment on his part and on the parts of other Soldiers.

3.  The applicant further states his original goal upon enlisting was to be a career Soldier, to serve his country, and to further his academic and military education as described to him as one of the many benefits offered when he was being recruited.  He communicated his goals to various levels of his military command, only to be advised to "Pursue any type of discharge, leave the military and make my life better."  He attests he was also advised that it was in his best interest and in the best interest of the military that they part ways.  He contends the military, at all levels, did little or nothing to offer him treatment for his physical and psychological conditions or assist him in achieving his goal to be a career Soldier.  It appeared the military's goal was to solve the problem by separating him and advising him to accept an undesirable discharge and leave the military.

4.  The applicant states in achieving a level of positive life experiences, maturing at all levels of life and the knowledge that the decisions made by him as an 
18-year old Soldier were, in part, his responsibility, he feels compelled to pursue this action.  He is now 56 years old, a married father, and productive business owner with an understanding that this is a process that he is better able to handle and assist in resolving so he may be awarded the honorable discharge that he deserves.

5.  The applicant provides no additional evidence.

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 was born in August 1956 and enlisted in the Regular Army on 14 September 1973 at the age of 17.  He completed initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his discharge he held the rank/grade of private (PV1)/E-1.

3.  The applicant's Enlisted Evaluation Data Report shows he received low and very low test ratings in the major areas of his MOS.

4.  His Enlisted Efficiency Report (EER), dated 12 February 1975, shows he was rated below average in:  adaptability, attitude, initiative, leadership, responsibility, and duty performance.  As a result, his rater recommended he be denied continued active duty service.  The applicant's rater stated he was a below average individual for his MOS and grade.  He failed to keep his appearance up to the lowest acceptable military standards.  He was very slow in adapting from one situation to another and he had to be closely supervised by a noncommissioned officer (NCO).  He possessed a very poor attitude for the Army and any NCO or officer he worked for.  He demonstrated very little initiative, such as doing any work or anything constructive on his own and accomplished very little.  He accepted no responsibility as a Soldier.

5.  His EER, dated 28 May 1975, shows he was rated unsatisfactory in:  adaptability, attitude, initiative, leadership, responsibility, and duty performance.  As a result, his rater recommended he be denied continued active duty service.  

6.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) between February 1974 and January 1975 on three occasions for the following offenses:

* Striking and kicking another Soldier on the body with his fist and feet
* Grabbing a Soldier and throwing him to the ground
* Grabbing a Soldier and throwing him against a wall locker
* Assaulting a Soldier by grabbing him causing a rope to be put around his neck, which was a means likely to produce grievous bodily harm
* Driving a privately owned vehicle without a license
* Failing to go at the time prescribed to his appointed place of duty
* Wrongfully possessing 2.13 grams, more or less, of a controlled substance, to wit:  marijuana in a hashish form

7.  The applicant's unit commander recommended a bar to enlistment/reenlistment be imposed against the applicant for all of the aforementioned disciplinary infractions.  The commander also noted the applicant had on occasion been late for assigned duties or missing from his place of duty.
He had a substandard personal appearance, lacked interest and had to be closely supervised in all tasks assigned.  He was uncooperative with all NCOs and officers.  He had to be continuously counseled on the same subjects.  He was involved in drug usage and all efforts to rehabilitate him proved ineffective.  The applicant could not adapt to military life and had no desire to do so.  The applicant acknowledged receipt of this notification, that he had been counseled on the basis of this action, and elected not to submit a statement in his own behalf.  The applicant's battalion commander reviewed the request and recommended that he be barred from enlistment/reenlistment.  The brigade commander approved the bar on 27 January 1975.

8.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains a Standard Form 93 (Report of Medical History) which shows he underwent a medical examination on 5 May 1975 as a prerequisite to separation from the Army under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant handwrote the following statement in item 8 (Statement of examinee's present health and medications currently used) "I'm in good health" and authenticated the statement with his signature.  This form shows he had suffered from syphilis, a venereal disease, 5 months prior which had been treated. 

9.  His record also contains Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ, memorandum, dated 6 June 1975, Subject:  Reason/Authority for Separation.  This form show the reason and narrative description of the regulatory/statutory authority for his separation from active duty on 6 June 1975 was:  Conduct triable by court-martial.  He was assigned a reentry eligibility code of "3b" indicating he was not eligible for immediate reenlistment unless a waiver was granted.  This code was assigned based upon the fact that he had time lost during his period of service.

10.  Headquarters, U.S. Army Training Center and Fort Dix, Special Orders Number 157, dated 6 June 1975, show he was to be discharged effective 6 June 1975 and issued a DD Form 258A (Undesirable Discharge Certificate).

11.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, on 6 June 1975.  He completed 1 year, 7 months, and 26 days of total active service with 27 days of lost time.

12.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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 in lieu of trial by court-martial 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 Veterans Administration 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 to an individual who was discharged for the good of the service at that time.


14.  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.

15.  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 contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  Records show the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, his contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

3.  With the exception of a venereal disease, which was treated, the applicant's record is void of any evidence and he has not provided any evidence showing he suffered from severe depression or any other illness during his period of service or that he sought assistance for coping with depression from his chain of command or from any of the numerous options that were available to him at the time.

4.  The evidence clearly shows he was a substandard Soldier who had a record of numerous disciplinary infractions and a failure to respond to the rehabilitative efforts exerted by his chain of command.

5.  The evidence of record shows he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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.

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)                                         AR20130002889



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ABCMR Record of Proceedings (cont)                                         AR20130002889



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