IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140019942 


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 his under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  The applicant states, in effect:

* he believes his discharge was inequitable
* the Army did not give proper consideration to the fact that he was being seen by the Division psychiatrist for a nervous condition
* the psychiatrist prescribed valium; this was when he believes he started deviating from Army standards
* he received nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) and started missing his scheduled place of duty
* he was asked if he wanted to remain in the Army and he replied affirmatively
* he was then told he would be transferred to another unit, but was discharged instead
* he truly feels his mental health condition prevented him from fulfilling his obligations to the Army
* he was never on any kind of anti-depressant drugs prior to entering the Army, and having alcohol readily available did not help either
* he is now suffering from a mental health condition for which he is receiving supplemental security income (SSI)
* he feels he needs to be treated in the Department of Veterans Affairs (VA) healthcare system
3.  The applicant provides a Standard Form (SF) 513 (Consultation Sheet) extracted from his military medical record. 

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 23 July 1974.  After completing initial training, he was awarded military occupational specialty 76W (Petroleum Storage Specialist).  The highest rank/grade held was private/E-2.

3.  Available records show the applicant received NJP under the provisions of Article 15 of the UCMJ on five occasions:

* on 6 March 1975, for one specification of failing to go at the time prescribed to his appointed place of duty (failure to repair (FTR)) and one specification of disobeying the order of a noncommissioned officer to get out of bed
* on 27 June 1975, for being absent without leave (AWOL) from 2 June 1975 to 13 June 1975; punishment was 30 days at the correctional custody facility (CCF)
* on 2 July 1975, for two specifications of FTR (failing to go to morning work formation); punishment included reduction in rank to private (PV1)/E-1, suspended for 30 days
* on 16 July 1975, for three specifications of FTR (two instances of missing morning work formation and one of missing an in-ranks inspection); the punishment of reduction in rank was executed making him a PV1/E-1
* on 23 December 1975, for one specification of disobeying the lawful order of his superior noncommissioned officer to get a haircut; punishment included reduction in rank to PV1/E-1

4.  The applicant took ordinary leave starting 31 December 1975.  On 12 January 1976, he was placed in an AWOL status.  He returned to military control on 23 January 1976.  

5.  On 2 February 1976, his commander preferred court-martial charges against him for the following specifications:

* AWOL from 12 January 1976 to 23 January 1976
* FTR on 26 January 1976
* FTR on 27 January 1976
* FTR on 29 January 1976

6.  On 19 February 1976, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he:

* was making the request of his own free will and had not been subjected to any coercion whatsoever by any person 
* understood 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 dishonorable discharge
* understood 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 VA
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

8.  On 12 March 1976, the separation authority approved his request for discharge in lieu of court-martial with an under other than honorable conditions discharge.  On 16 March 1976, he was discharged accordingly.

9.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 7 months, and 1 day of active service.  It further states he


had 22 days of lost time.  He was awarded or authorized the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

10.  His record contains an SF 513, also provided by the applicant, which essentially states:

* the applicant was seen by a psychiatrist on 5 November 1975
* the applicant told the psychiatrist he had a nervous condition and had been seen there 5 months earlier
* he had been prescribed valium at that time and he reported his condition went away
* the applicant told the psychiatrist that, recently his neck began to twitch, which he ascribed to his nervous condition
* the psychiatrist again prescribed valium and stated the applicant would be seen again if the twitching continued

11.  On 10 July 1976, he applied to the Army Discharge Review Board (ADRB).  On 2 April 1979, the ADRB denied his request to upgrade the characterization of his service.

12.  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, an under other than honorable conditions discharge 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 request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Discharges under this chapter are due to a voluntary request 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 the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record reflects multiple incidents of indiscipline, with the first starting in March 1975 and continuing until prior to his discharge.  While most of the offenses charged related to his failure to be at a prescribed place of duty on time, he also was AWOL twice (11 and 12 days, respectively) and was charged with disobeying orders twice (once to get out of bed and the other for failing to get a haircut).

	a.  The applicant attributed his misconduct to his nervous condition (identified in the SF 513 as twitching in his neck) and the valium he was prescribed for treatment.  According to the SF 513, his condition was apparently treated successfully with valium around August 1975 (5 months prior to his 5 November 1975 consultation with the psychiatrist).  The charges which ultimately led to his discharge related to a period of AWOL for 12 days in January 1976.  The applicant offers no clear and substantiating evidence which might show how his nervous condition or his prescription of valium are linked to this AWOL or how it may have contributed to his pattern of misconduct.

	b.  Based on the above, there is insufficient evidence to tie his condition and his prescription of valium to the period of AWOL which led to his discharge and to his overall pattern of misconduct.  Neither should therefore be viewed as mitigating factors.

4.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a general discharge under honorable conditions.  Accordingly, there is 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)                                         AR20140019942





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ABCMR Record of Proceedings (cont)                                         AR20140019942



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