IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20140012969 


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 to an honorable discharge.
	
2.  The applicant states that he was discharged from the U.S. Marine Corps (USMC) in 1974 based on a mental disorder.  In 1977, while he was under a doctor's care, he was accepted for enlistment in the Army National Guard (ARNG).  He states that he was not fit for duty and his enlistment was not valid.

3.  The applicant provides copies of his two DD Forms 214 (Report of Separation from Active Duty) and his civilian medical records.

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 ARNG of the United States (ARNGUS) and Indiana ARNG (INARNG) on 22 November 1977 for a period of 6 years.

3.  The applicant's military medical records are not available for review.

4.  He was ordered to active duty for training on 19 February 1978 for a period of 15 weeks to complete military occupational specialty training.
  
5.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost), in pertinent part:

   From				Thru			Days		Reason
   
    1 May 78			13 May 78		  13		AWOL (Absent Without Leave)
   11 Jun 78			 26 Jul 78	 	  	  47		AWOL
    27 Jul 78			11 Sep 78		  47		Confinement	

6.  Military Department of Indiana, Adjutant General's Office, Indianapolis, IN, Orders 188-73, dated 25 September 1978, separated the applicant from the ARNG on 26 July 1978 with a general, under honorable conditions discharge; transferred him to the U.S. Army Reserve; and assigned him to Company B, 
5th Battalion, 4th Advanced Individual Training Brigade, Fort Leonard Wood, MO.

7.  A Report of Psychiatric Evaluation shows the applicant was evaluated on
13 September 1978 and found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in any board proceedings.  In addition, no evidence of underlying, previously unrecognized, medically disqualifying emotional illness was found.  Accordingly, the applicant was psychiatrically cleared by the psychiatrist for any administrative action deemed appropriate by the command.

8.  On 16 February 1979, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL (with two specifications) from:

* 19 November 1978 to 25 January 1979
* 27 January 1979 to 9 February 1979

9.  On 22 February 1979, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.
	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of lesser included offenses therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might –

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions.

	d.  He was also advised that he could submit statements in his own behalf and he elected to submit a statement.

   e.  The applicant and his counsel placed their signatures on the document.

   f.  A review of the applicant's statement failed to reveal the reason(s) or his rationale for going AWOL.

10.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

11.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

12.  The applicant's DD Form 214 shows he entered active duty this period on
27 July 1978 and he was discharged on 9 April 1979 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, with an under other than honorable conditions characterization of service.  He had completed 4 months and 1 day of net active service during this period and he had 136 days of time lost.
13.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

14.  In support of his application the applicant provides the following documents.

   a.  A DD Form 214 that shows he entered active duty as a member of the USMC Reserve on 16 October 1974 and he was honorably discharged on 
19 November 1974 based on Marine Corps Separation Manual 265.  He had completed 1 month and 4 days of net active service during this period.
   
   b.  His civilian medical records that span the period 15 September 1977 to 
1 May 1978 and show, in pertinent part, on:

* 15 September 1977 – 

* he complained of nervousness and uncontrollable temper outbursts
* was admitted to Southwestern Indiana Mental Health Center (MHC)

* 29 September 1977 – he requested voluntary treatment at Evansville State Hospital (EHS)

* 4 October 1977 –

* a psychiatric diagnosis was made (but it is not specified in the record)
* he was discharged from MHC and transferred to ESH (outpatient)

* 28 November 1977 – 

* he admitted to alcohol and drug abuse since before age 16
* he acknowledged he was not in a treatment program
* was recommended for complete detoxification and the Alcoholics Anonymous program
* was admitted to residential program, but left permanently against staff advice within the first 24 hours

* 1 May 1978 –

* he failed to follow-up with any outpatient services
* was terminated from the treatment program


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

	a.  Chapter 10 provides 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.  Chapter 3, 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. 	Chapter 3, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded because he was previously discharged from the USMC based on a mental disorder, he was accepted for enlistment in the ARNGUS while under the care of a doctor, and he was not medically fit for entrance into military service.

2.  The DD Form 214 that was issued to the applicant when he was honorably discharged from the USMC on 19 November 1974 fails to show that he was discharged based on a mental disorder.

3.  The evidence the applicant provides shows he received a psychiatric diagnosis on 4 October 1977, the date he was discharged from the MHC.  However, he provides no evidence relating to the diagnosis.

4.  He enlisted in the ARNGUS and INARNG on 22 November 1977.

5.  The regulations governing the Board's operation require that the enlistment process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has failed to provide such evidence.  Therefore, in the absence of evidence to the contrary, the applicant's enlistment in the ARNGUS is presumed to have been valid.

6.  Records show, on 13 September 1978, the applicant was examined by a psychiatrist who found no evidence of underlying, previously unrecognized, medically disqualifying emotional illness.

7.  The evidence of record shows that the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

8.  During the period of service under review, the applicant was charged with offenses punishable by a bad conduct or dishonorable discharge, he completed only about 4 months of active duty, and he had 136 days of time lost (more than 4 and one-half months).  Moreover, the evidence of record shows a psychiatrist found the applicant was able to distinguish right from wrong and to adhere to the right.  Thus, in view of the foregoing, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

9.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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)                                         AR20140012969



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ABCMR Record of Proceedings (cont)                                         AR20140012969



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