BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140010168 


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 under honorable conditions discharge. 

2.  The applicant states the type of discharge was unjust because of medical and mental reasons at the time.  His state of mind (rage) and loss of control of his emotions was a crime of other Soldiers against him.  He was drugged with LSD at a party.  He should have been in the hospital, not in jail for 30 days. 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* Self-authored letter to the Board
* Multiple letters of recommendation and/or character reference letters

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 4 September 1970.  He was trained in and held military occupational specialty 32D (Fixed Station Technical Controller).

3.  He served in Germany from on or about 19 June 1971 to on or about 14 July 1972.  He was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  In November 1971, his supervisors (enlisted and commissioned officer) wrote statements indicating the applicant had a definite attitude problem towards the section, the unit, and the Army in general.  He totally disliked the Army because it interfered with his personal life and his dislike was not directed toward anyone in particular.  He constantly complained and stated he wanted out of the Army.  He was counseled repeatedly to no avail. 

5.  On 31 December 1971, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 2 January 1972.  

6.  On 1 February 1972, he accepted nonjudicuial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 31 December 1971 to 2 January 1972. 

7.  On 10 February 1972, his immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  He stated that the applicant voluntarily came to him and stated his dislike for the Army.  The next day, he again came forward and presented the commander with a letter which stated his feelings about the Army.  He has a violent dislike of the Army and resents the type of authority connected with the military.  He underwent a psychiatric evaluation and the psychiatrist indicated there was no psychiatric illness and he freely chooses not to cooperate. 

8.  The applicant provided a response to the bar and indicated this bar serves no purpose and that the reason indicated on it is poor.  He stated that there are thousands of Soldiers in the Army who felt like he did and that his feeling about reenlisting could change in time.  He also indicated he felt this bar is a punishment for his attitude toward the Army.  He felt it was his right to protest and disagree with a decision that could affect his life.  

9.  It appears in or around March 1972, his chain of command was contemplating separating him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness or unsuitability.  However, the complete facts are not available for review and the disposition of this action is unknown.

10.  On 15 March 1972, he underwent a separation physical at the 189th Medical Detachment as part of the contemplated separation action under the provisions of Army Regulation 635-212.  The military doctor found him medically qualified for separation and assigned him a PULHES of "1-1-1-2-1-1" with the 2 assigned under "Hearing" to indicate he had some hearing loss. 

11.  On 25 May 1972, Company B, Signal Battalion, 447th U.S. Army Strategic Communications Command, Germany, published Unit Orders Number 45 reducing him from specialist four/E-4 to private first class/E-3 by reason of misconduct (NJP under Article 15 of the UCMJ).

12.  On 25 May 1972, court-martial charges were preferred against him for: 

* one specification of being disrespectful in language toward his commanding officer 
* one specification of wrongfully communicating a threat to kill his commander and every noncommissioned officer (NCO) in the company
* one specification of wrongfully using provoking words such as "you are stupid" and "I feel like jumping over this counter and killing you and the company commander and every NCO in the company"

13.  On 20 June 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement on his own behalf 

14.  On 22 June 1972, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under honorable conditions general discharge certificate.

15.  On 14 August 1972, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under honorable conditions.  This form further confirms he completed 1 year, 11 months, and 9 days of total active service and he had 3 days of lost time.

16.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

17.  He provides: 

	a.  A self-authored statement wherein he talks about his post-service post-traumatic stress disorder caused by a motorcycle accident.  He also describes his struggles in life and his military experience, including his service in Germany. He also explains that he did not drug himself; rather, someone may have spiked his drink which led him to react the way he did.  He further states that his life has been a struggle since his discharge from the Army and he only desires to regain the honor and asks the Board for compassion. 

	b.  Multiple letters of support and/or character reference letters from various individuals who describe him as church-going, friendly, honest, dependable, and hard-working.   Some of the authors recommend an upgrade of his discharge. 

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 requests in effect that his general discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an 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 in lieu of trial by court-martial.  The applicant 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.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his arguments:

	a.  Nothing in the applicant's records shows he suffered from a medical or a mental problem that led him to commit the offenses for which he could have been court-martialed.  In fact, not only does he fail to provide evidence of such contention, his service records clearly show he was medically and mentally qualified for separation

	b.  Nothing in the applicant's record shows he was forced to choose the discharge.  When presented with his options, he willingly chose the discharge.  He could have elected trial by a court-martial if he felt he was innocent of the charges against him or if he believed there were extenuating circumstances.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  .  It appears the separation authority considered his overall record of service when he directed the applicant be discharged with a general discharge versus the normally under other than honorable conditions discharge.  Therefore, he is not entitled to an upgrade of his discharge to an honorable 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)                                         AR20140010168





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ABCMR Record of Proceedings (cont)                                         AR20140010168



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