BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140005262 


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.  The applicant states he had a mental illness at the time of his discharge. 

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 10 April 1980.  He held military occupational specialty 11C (Indirect Fire Infantryman).   He was assigned to the 2nd Battalion, 1st Infantry, Fort Lewis, WA. 

3.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: 

* 16 July 1980, for failing to go at the time prescribed to his appointed place of duty
* 19 September 1980, for wrongfully possessing marijuana 
* 6 January 1981, for wrongfully using provocative words (two occasions) and willfully disobeying a lawful order (three occasions) 

4.  The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, his record contains the following documents:

	a.  DA Form 3822-R (Report of Mental Status Evaluation).  It states the applicant has paranoia in that he feels he has to always be on the lookout for people trying to attack him (fight) and trying to jive him.  This seems to be due to his conditioning prior to duty.  He appears to be immature in his outlook and work and has many ideas or schemes which are impractical or dangerous.  This appears to be less as result of psychotic process than his upbringing.  He admits to drug use and not being able to live by any rules.  He has the mental capacity to understand and participate in administrative proceedings and he was mentally responsible.  

	b.  Orders 57-776, issued by Headquarters, 9th Infantry Division, Fort Lewis, WA, on 24 March 1981, reassigning him in the rank of private to the U.S. Army Separation Transfer Point, effective 30 March 1981, for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 30 March 1981 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 11 months and 21 days of creditable active service.

5.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is normally considered appropriate.

	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 applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 30 March 1981 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

3.  The mental status evaluation he underwent prior to his discharge noted his behavior and indicated he had the mental capacity to understand and participate in administrative proceedings and he was mentally responsible.

4.  There is no evidence in the available records, nor did he provide documentation, to warrant an upgrade of his discharge.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20140005262





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ABCMR Record of Proceedings (cont)                                         AR20140005262



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