IN THE CASE OF:	  

		BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130012540 


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 under other than honorable conditions discharge.

2.  He states:

	a.  His discharge should be upgraded because of mental and medical conditions incurred during his service and lack of treatment after a mental breakdown.  As a citizen of the United States of America, he signed up to serve his country.  At the time of his illness, he was poorly advised as to what he could or should have done.  

	b.  He enlisted at 17 years of age to serve the country he loves and make a better life for him and his family.  He was told in basic combat training that olive drab green was the only color in the Army, which he naively believed.  He soon found that was not the truth.  He got into trouble repeatedly because of racial slurs and comments.  He thought he could report these issues to his superiors and all would be well, but instead things worsened.  

	c.  He turned to drugs and alcohol as an outlet, and he eventually had a mental breakdown.  He was hospitalized on the psychiatric ward at an Army hospital where he was given Thorazine.  He didn't receive any counseling, and he was sent back to his unit after a very short period.  Things continued to get worse.  He went absent without leave (AWOL) and was later placed in the stockade.  He was told he could get out of the Army if he signed a "Chapter 10" discharge.  With no one to advise him and being very disillusioned with the Armed Services, he signed the papers and was sent home.

	d.  He worked many jobs over the years, but he couldn't attain any longevity because his alcoholism and drug addiction had escalated.  His health eventually deteriorated.  Between the time he entered the Army and his discharge, he "contracted the disease of addiction."  He also has several other health problems.

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 16 September 1971, the applicant enlisted in the Regular Army at 17 years of age.  He completed initial entry training, and he was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).  

3.  On 21 February 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 8 January to 21 February 1973.  

4.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of his DA Form 20 (Enlisted Qualification Record) shows he was AWOL during the following periods:

* 8 January to 21 February 1973
* 29 to 30 May 1973
* 5 to 28 June 1973
* 17 September 1973 to 27 January 1974

5.  A DD Form 458 (Charge Sheet), dated 7 February 1974, shows he was charged with being AWOL during the following periods:

* 17 September 1973 to 28 January 1974
* 29 to 31 May 1973
* 5 to 29 June 1973

6.  On 7 February 1974, the applicant consulted with counsel who advised him of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the procedures and rights available to him.

7.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  	

	a.  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	c.  He indicated he would submit a statement in his own behalf.

7.  In the statement he submitted with his request for discharge, he stated he wanted out of the Army because of pressures he had encountered that led him to become a drug addict, which nearly cost him his life and shamed his family.  He stated that if he was able to get out, he would be able to change that.  He also stated, "I can't take being here any longer under any circumstances."

8.  An undated affidavit signed by him shows he stated he had been fully advised of the rights and advantages that could accrue to him by voluntarily remaining on active duty beyond the scheduled date of his release for the purpose of continuing medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability.  He stated he had been further advised that if he elected to be discharged or released from active duty as scheduled, he would not, after such discharge or release from active duty, be eligible for separation or retirement for physical disability.  He also stated that, in consideration of the above, he did not desire retention on active duty in the Army beyond the scheduled date of the expiration of his term of service.

9.  In a memorandum, subject:  Request for Discharge for the Good of the Service, dated 25 February 1974, the Commander, U.S. Army Personnel Control Facility (PCF), Fort Bragg, NC, stated he had personally interviewed the applicant.  The applicant stated he was aware of the nature of the interview and the consequences of an Undesirable Discharge Certificate, but desired elimination from the service under the provisions of Army Regulation 635-200, chapter 10.  The applicant stated he would go AWOL again if he was not released and that he desired to leave the service permanently.  The author of the memorandum recommended approval of the applicant's request for discharge and issuance of an Undesirable Discharge Certificate.

10.  A DA Form 2496 (Disposition Form) shows the applicant underwent a psychiatric evaluation on 6 March 1974.  

	a.  The examining psychiatrist noted the applicant:

* had a past psychiatric history of treatment in a drug rehabilitation unit at an Army hospital
* had no psychiatric history prior to hospitalization
* had no psychiatric complaints at the current time
* was being seen purely on an administrative basis to determine his sanity for an administrative discharge
* had significant disciplinary problems since entering active duty including numerous Article 15s, two AWOL charges, and drug abuse
* claimed he had not been taking drugs recently

	b.  The psychiatrist's diagnostic impression was that of an impulsive disorder with a past history of drug abuse.  The psychiatrist found the applicant to be legally competent to take part in any administrative proceedings, to fully understand the nature of the charges against him, to fully understand right from wrong, and to fully understand the penalty he would receive if separated under the provisions of Army Regulation 635-200, chapter 10.  The psychiatrist further noted the applicant was well able to discuss his case with an attorney and that an administrative discharge was most appropriate in his case.

10.  A DA Form 2496, dated 28 March 1974, shows the Staff Judge Advocate (SJA) reviewed the applicant's request for discharge and found it to be within the purview of Army Regulation 635-200, chapter 10.  The SJA noted, in part, that the applicant had been counseled by the commander of the PCF and by legally qualified counsel and that he understood the consequences of his request and the benefits he could lose.  The SJA recommended approval of the request for discharge and recommended that the applicant be furnished an undesirable discharge.

11.  On 1 April 1974, the separation authority approved the applicant's request and directed that he be issued an Undesirable Discharge Certificate.  On 1 May 1974, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 2 years and 22 days of total active service with 204 days of lost time.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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, 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 an individual who was discharged for the good of the Service.  

	b.  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.

	c.  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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  The applicant was 17 years of age when he enlisted.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with three specifications of being AWOL, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

4.  He states his discharge should be upgraded because of mental and medical conditions incurring during his service.  The record shows he received treatment for his drug abuse and that he did not have any mental conditions that were found to be mitigating factors with regard to his discharge.  The record also shows that he declined an opportunity to voluntarily remain on active duty beyond the scheduled date of his release for the purpose of continuing medical care or hospitalization. 

5.  Based on his periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade 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)                                         AR20130012540





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ABCMR Record of Proceedings (cont)                                         AR20130012540



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