IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130012008 


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 upgrade of his discharge to general under honorable conditions.

2.  The applicant states he and some other Soldiers were taken to some unknown location; they started smoking and weird things started happening.  They started attacking each other with guns.  He got scared and started running and has been running ever since.   He got a job driving trucks and had another episode in Iowa.  He left the truck and went back to Alabama.  His family left him, but he can understand why.  He just recently started to get some help with this problem.  A discharge upgrade would allow him to obtain help from the Department of Veterans Affairs (VA)

3.  The applicant provides only his personal statement.

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 9 August 1972.  He accumulated seven nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice.  Most were for absence without leave (AWOL) but his offenses included sleeping on guard duty and breaking restriction.

3.  The applicant was AWOL from 20 August 1974 to 20 January 1975.

4.  When charges for that AWOL were preferred, the applicant consulted with 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.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and be issued an Undesirable Discharge Certificate.  He indicated he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the VA.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.

5.  The chain of command recommended approval of the applicant's request for discharge.  The separation authority approved the request and directed the issuance of an Undesirable Discharge Certificate.

6.  On 6 March 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under conditions other than honorable.  He had 2 years and 19 days of creditable active duty service and approximately 189 days of lost time.

7.  In July 1977 and August 1980, the Army Discharge Review Board denied the applicant's requests to upgrade his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides in:

	a.  chapter 10 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, an under other than honorable conditions discharge is normally considered appropriate.

	b.  paragraph 3-7b 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 provided no evidence to substantiate his assertion that he experienced and still experiences some apparently mental or emotional disturbances.

2.  Entitlement to VA benefits is entirely within the jurisdiction of that department and is not normally a basis upon which this agency would base a discharge upgrade.  

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the punitive discharge that he might have received.

4.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors.

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

6.  The applicant has submitted no evidence or convincing argument in support of his contentions.  There is no basis for upgrading his 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)                                         AR20130012008





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ABCMR Record of Proceedings (cont)                                         AR20130012008



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