BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130018131 


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, in effect, that his discharge under other than honorable conditions be upgraded to show he was honorably discharged due to medical conditions.

2.  The applicant states at the time of his entry into the U.S. Army he was suffering from severe depression and alcoholism.  As a result he received a summary court-martial for going to the field while under the influence.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty), dated 11 May 1979
* two letters of reference

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 1976, he enlisted in the Regular Army for 3 years.  His Standard Form (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History), both dated 19 July 1976, do not show any evidence of severe depression or alcoholism.  He was found qualified for enlistment.

3.  On 14 October 1976, he was assigned to the 2nd Battalion, 1st Field Artillery, Fort Sill, OK.

4.  He accepted nonjudicial punishment (NJP) on:

* 7 February 1977, for being absent without authority from 0600 - 1939 hours on 6 January 1977
* 10 January 1978, for unlawfully striking a noncommissioned officer (NCO)

5.  From 11-14 September 1978, he was confined by civil authorities for being drunk and disorderly.

6.  On 19 October 1978, he was tried before a summary court-martial.  

	a.  He pled not guilty but was found guilty of:

* leaving his appointed place of duty without authority
* being disrespectful in language toward an NCO

	b.  He pled guilty and was found guilty of:

* being disrespectful in deportment toward an NCO
* being drunk and disorderly at his duty section on or about 19 August 	1978

7.  On 2 April 1979, he was given a physical examination for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations).  An SF 88 and an SF 93, dated 2 April 1979, do not show any evidence of severe depression or alcoholism during his period of service.

8.  On 4 April 1979, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 28 November 1978 to 
26 March 1979.

9.  On 5 April 1979, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate
* advised he could submit statements in his own behalf

10.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  He submitted a statement in his own behalf.  He indicated he had a 9th grade education and was 20 years old.  He joined the Army because he needed to get married and he needed a guaranteed job with benefits.  He had to send his wife and son home three times.  He was undergoing financial problems and this almost cost him his marriage.  During the time he was AWOL he and his wife talked it out.  They were not going to get a divorce and he was now requesting a discharge from the service.

12.  His intermediate commanders recommended approval of his request for discharge for the good of the service and that his service be characterized as under other than honorable conditions.  On 20 April 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an under other than honorable conditions discharge.

13.  On 11 May 1979, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 due to conduct triable by court martial.  He had completed 2 years, 4 months, and 19 days of active service that was characterized as under other than honorable conditions.  He also had 155 days of lost time.

14.  He submitted a letter, dated 5 September 2013, from the Salvation Army Adult Rehabilitation Center.  The Program Director stated the applicant voluntarily admitted himself on 28 May 2013 and is currently meeting all the program requirements.  He was accumulating 40 supervised community service hours per week in a 6 month program.  The applicant had given himself totally to the program and they felt his future was bright.

15.  He submitted a letter, dated 6 September 2013, from the Career and Recovery Resources' Homeless Veterans Reintegration Program (HVRP).  The HVRP Case Manager stated the applicant has demonstrated great strides in turning his life around.  When the applicant completes his 6-month program with the Salvation Army, the HVRP will begin working to get him employed and obtain stable housing.  A discharge upgrade will assist him in his goal of gaining employment in the offshore field.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement or severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with 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.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.
	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was suffering from severe depression and alcoholism at the time of enlistment in the Army.  However, his enlistment physical examination does not mention either of the two conditions and he was found qualified for enlistment.   

2.  There is no evidence in his available service medical records of treatment for depression or alcoholism.  He did have two alcohol-related incidents.  He was drunk at his duty section on or about 19 August 1978 and he was held by civil authorities for 4 days for being drunk and disorderly.  However, there is no evidence that these incidents contributed to his continued misconduct.

3.  At the time of his request for discharge, he cited financial problems and being unable to support his wife and son as the reason he wanted to get out of the Army.  His separation physical examination does not mention either depression or alcoholism and he was found qualified for separation.

4.  In order to be processed through the PDES a disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  There is no evidence the applicant had a medical condition that was incurred while entitled to basic pay or was aggravated in the performance of active duty or inactive duty for training.  

5.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

7.  He received NJP on two occasions, was convicted by a summary court-martial, and had 155 days of lost time.  Therefore, his service is unsatisfactory.

8.  In view of the above, there is an insufficient basis upon which to upgrade his discharge to an honorable discharge or a general discharge or to correct his record to show he was discharged for medical reasons.

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)                                         AR20130018131



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ABCMR Record of Proceedings (cont)                                         AR20130018131



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