IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140008207 


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, an upgrade of his undesirable discharge to an honorable or general discharge.

2.  The applicant states:

* when he was on active duty he was told his paper work was lost and he  would not be paid
* he was not told where the chow hall was located so he was unable to eat
* he remained at Fort Belvoir for one week and he left to go back home
* he stayed at home until he was taken back to Fort Dix for discharge in 1973
* he is a diagnosed paranoid schizophrenic and has been suffering from the condition since his Army service
* he was not able to make rational decisions at the time that he made a terrible mistake
* he has suffered from paranoid schizophrenia for several decades and has not been able to access proper mental health and medical assistance partly as a result of his character of service
* an upgrade of his discharge would give him access to resources that he is being denied

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a psychiatric update from Wake County Human Services, Raleigh, NC.

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 Regular Army on 4 January 1971.  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  Charges were preferred against him on the following occasions:

     a.  On 21 October 1971, for being absent without leave (AWOL) from 1 July to 20 October 1971.

     b.  On 26 July 1973, for being AWOL from 22 October to 12 November 1971, 13 November to 2 December 1971, 3 December 1971 to 31 May 73, and from 
3 June to 20 July 1973.

4.  A statement he made in a questionnaire to the Commander, Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ, shows he was very happy with the type of discharge he was receiving.  He stated that he would never be able to take orders willingly, if he did not see fit.  He went on to say the Army had nothing he wanted.  He made no mention of a mental disorder.   

5.  On 31 July 1973, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and the procedures and rights available to him.

6.  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:
	a.  He understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

	b.  As a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under Federal and State laws. 
 
	c.  He understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

	d.  He had been fully informed by counsel of the elements of the offenses with which he had been charged, the facts that had to be established to sustain a finding of guilty, and the possible defenses available at the time.

7.  In a memorandum, subject:  Request for Discharge [Under the Provisions of] Chapter 10, Army Regulation 635-200, his company commander recommended approval of the applicant's request.  He stated the applicant had been medically examined and was qualified for separation.  He also stated there was no reason to believe the applicant was mentally ill.

8.  On 21 September 1973, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate. 

9.  On 25 October 1973, he was discharged accordingly after completing 
9 months and 7 days of total creditable active military service, with 740 days of lost time due to being AWOL.

10.  His medical records are not available for review and his available records are void of documentation that indicates he was diagnosed with a mental condition during his military service.

11.  On 1 March 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  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.  When warranted, commanders were to provide a statement indicating the member was mentally defective, deranged, or abnormal.  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 states 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 contends his discharge should be upgraded because he is in need of medical care.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  His lengthy periods of AWOL rendered his service unsatisfactory.  There is no documentary evidence of mitigating factors that would warrant changing the separation authority's determination that he would receive an under other than honorable conditions discharge.  Therefore, there is an insufficient basis upon which to grant the requested relief.

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)                                         AR20140008207



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ABCMR Record of Proceedings (cont)                                         AR20140008207



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