IN THE CASE OF:	  

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016622 


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 under other than honorable conditions to honorable or a medical discharge.

2.  The applicant states:

	a.  At the time of his service, he was suffering from mental distress due to being falsely accused of rape.  The charge was later dismissed.  As a young, black, 18-year old, uneducated service member with only a second or third grade education, he was going through traumatic distress.  He was depressed daily and didn't know who to turn to for help.

	b.  He was never given the opportunity to seek any type of counseling or psychotherapy for what he was going through.  The investigation proved his innocence, but he was distraught and could no longer execute his duties.  His mental condition interfered with the performance of his duties which led to his release from active duty.  He only missed 2 days of work and should have been given the chance to stay in the unit.

3.  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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 15 November 1978.  On 15 November 1978 in conjunction with his enlistment, he completed an addendum to DD Form 1966 (Application for Enlistment) wherein he certified that he had successfully completed 10 years of formal education.  He authenticated this form by placing his signature in the appropriate block.  His recruiter also checked the block that stated he verified the applicant's education level by inspecting school transcripts or a letter from the school.  The recruiter also authenticated this form by placing his signature in the appropriate block.

3.  He was discharged from the USAR DEP on 23 April 1979.

4.  He enlisted in the Regular Army on 24 April 1979 when he was 18 years of age and he held military occupational specialty (MOS) 94B (Food Service Specialist).  He was assigned to the 3rd Battalion, 16th Field Artillery, Germany.

5.  On 12 January 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty.

6.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged under other than honorable conditions on 20 July 1981 in the rank of private under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for conduct triable by court-martial.

7.  There is no evidence in his available records that shows he was treated for or diagnosed with depression or any other mental health condition/disorder while serving on active duty.  His available records do not show he was diagnosed with or suffered from any medical condition while serving on active duty that limited his ability to perform in his grade/MOS or that would have warranted entry into the Army Physical Disability Evaluation System.

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

9.  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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally considered appropriate.

10.  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.

11.  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.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  This regulation also states an enlisted member may not be referred for physical disability processing when action has been started that may result in an administrative separation with a characterization of service of under other than honorable conditions.

13.  Army Regulation 635-40 further states 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/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  However, it appears his command preferred court-martial charges against him for an offense or 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 for the good of the service in lieu of trial by court-martial.

2.  It is presumed that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed that his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that the type of discharge directed and the reason for separation were appropriate considering the available facts of the case.

3.  The applicant contends his discharge should be upgraded because he was young and under mental distress at the time of his service.  Records show he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  There is no evidence and he has not provided any evidence that shows he was suffering from or had been treated for a mental disorder/condition during his military service.  If he had been suffering from mental stress, he could have raised that as an issue to be considered during his separation processing.  Additionally, the governing regulation stated a Soldier may not be referred for physical disability processing when action has been started that may result in an administrative separation with a character of service of under other than honorable conditions.

5.  The available records show he received NJP for failing to report to his place of duty.  This and the court-martial charges preferred against him that led to his discharge indicate his service did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request for an honorable, a general, or a medical 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 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)                                         AR20130016622



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ABCMR Record of Proceedings (cont)                                         AR20130016622



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