IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140007015 


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 (UOTHC) discharge to an honorable discharge (HD) or a general discharge (GD).  He also requests the reason for discharge be changed to "medical."  

2.  He states:

	a.  He is requesting the above changes to his discharge so that he may obtain better employment and become a more productive citizen.  He is also requesting the changes for his peace of mind.  He was young and impatient and his choices were poor.  Looking back, he realizes he missed a learning experience, which he truly regrets.  

	b.  His psychological condition did not help, but added to his hasty decisions and trials.  He suffers from a type of bipolar disorder and he believes he suffered from this at the time that he served.  He assumes he still suffers from this, which a visit to a Department of Veterans Affairs (VA) hospital or clinic would show.  

3.  He provides no additional evidence in support of his application.  

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 14 November 1974, the applicant enlisted in the U.S. Army Reserve (USAR).  

3.  On 11 December 1974, Headquarters, Fifth United States Army, Fort Sam Houston, TX, issued Letter Orders Number T-12-0304 ordering him to initial active duty for training (IADT) at Fort Leonard Wood, MO effective 8 January 1975.  

4.  On 4 April 1975, Headquarters, U.S. Army Training Center and Fort Leonard Wood, MO, issued Special Orders Number 094 Extract.  Effective the date of the orders, he was released from a training company to his home unit in an absent without leave (AWOL) status.  

5.  A memorandum, subject:  Notification of Right to Appeal, dated 8 July 1975, from Headquarters, Fifth United States Army, shows he had been recommended for entry on involuntary active duty by reason of being AWOL from IADT.  He was advised that his appeal must be submitted to his unit commander within 15 days of receipt of the memorandum.

6.  On 12 August 1975, Headquarters, Fifth United States Army, issued Letter Orders Number E-08-41, subject:  Order to Active Duty - Reservist (Involuntary).  He was ordered to active duty effective 26 September 1975 for a period of 22 months and 22 days.  He was initially assigned to the U.S. Army Reception Station, Fort Leonard Wood, MO.  A review of his record indicates he reported as ordered; however, he was reported AWOL on 6 October 1975.  

7.  On or about 16 February 1976, he returned to military control.  

8.  On 20 February 1976, he underwent a medical examination.  A Report of Medical History shows he indicated he had attempted suicide, had depression or excessive worry, and he annotated "Yes," to "nervous trouble of any sort."  The examining physician noted no diseases or injuries incurred on active duty and found him qualified for separation.  

9.  A DD Form 458 (Charge Sheet), dated 25 February 1976, shows he was charged with being AWOL from 6 October 1975 to 15 February 1976.  

10.  On 25 February 1976, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an undesirable discharge, and of the procedures and rights available to him.

11.  After consulting 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 acknowledged that he understood:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be issued a UOTHC discharge and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the VA
* 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 a Undesirable Discharge Certificate

12.  A statement he submitted with his request for discharge shows he was requesting discharge because he could not deal with military life and he had problems at home.  

13.  On 2 March 1976, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and directed that he receive an undesirable discharge.  On 3 March 1976, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 2 months and 8 days of total active service and he had 9 months and 4 days of prior inactive service.  His service was characterized as UOTHC.  
14.  The available records are void of documentation indicating he was diagnosed with a mental condition during his military service.  

15.  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 VA 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.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and provides for the retention, retirement or separation of a member who is determined to be unfit to perform the duties of his office, grade, rank or rating because of physical disability.  Retirement or discharge due to physical disability requires processing through the PDES.  The version of the regulation in effect at the time stated that a member who had been charged with an offense for which he could be dismissed or given a punitive discharge could not be referred for disability processing.  It also stated the medical condition must have been incurred while entitled to basic pay.



DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making an applicant eligible for employment opportunities or VA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  There is no basis for correcting the applicant's record to show he was discharged for medical reasons.  There is no evidence that he had been diagnosed with a condition that would have warranted his referral to the PDES.  Even if he did have an unfitting condition, he would not have been eligible for referral to the PDES because he had been charged with an offense for which he could have been given a punitive discharge.  

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 applicant's records show he was charged with an offense 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 process.  

4.  His record shows a history of misconduct that began during IADT and continued when he was later involuntarily ordered to active duty.  Based on his history of misconduct, his service was clearly unsatisfactory.  Therefore, there is an insufficient basis upon which to upgrade his discharge to a GD or an HD.

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)                                         AR20140007015



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ABCMR Record of Proceedings (cont)                                         AR20140007015



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