IN THE CASE OF:  	  

		BOARD DATE:  25 August 2015	  

		DOCKET NUMBER:  AR20150000931 


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, that his discharge under other than honorable conditions be changed to a medical discharge.   

2.  He states, in effect, he was 17 years old when he entered the military.  He became a paratrooper and went to Vietnam.  He also used drugs and he was not treated for drug usage.  He regrets his behavior, but he believes he was medically ill at the time he was discharged.

3.  He provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Report of Separation from Active Duty).

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 18 August 1970, the applicant enlisted in the Regular Army at the age 
of 17.  He served in the Republic of Vietnam from 23 March to 2 August 1971.  He was honorably discharged on 25 June 1972, after serving 1 year, 10 months, and 8 days of active service for immediate reenlistment.  

3.  On 26 June 1972, he reenlisted.  His disciplinary history includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on:

* 28 March 1973 for failing to go at the time prescribed to his appointed place of duty on 14 March 1973
* 12 April 1974 for having a switch blade knife in his possession on 
29 March 1974, failing to properly register his motor vehicle on 31 March 1974, and for failing to properly transfer ownership of his motor vehicle on 31 March 1974
* 22 May 1974 for operating a vehicle in a reckless manner thereby causing the vehicle to collide with another vehicle on 3 April 1974
* 30 July 1974 for leaving his appointed place of duty without authority on 25 July 1974 

4.  Although the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are contained in his military records, most of the documents are illegible.

5.  However, his record contains a charge sheet, dated 30 July 1974, that shows charges were preferred against him for having in his possession 12 tablets of a methaqualone based substance “Mendrax” (correctly spelled Mandrax) and 
0.58 grams of amphetamines, a controlled substance, on 12 May 1974.

6.  Additionally, the ABCMR Record of Proceedings, dated 18 February 1976, stated that:

   a.  On 9 August 1974, the applicant submitted a request for discharge for the good of the service, after being properly advised by legal counsel and he elected not to submit a statement on his behalf. 
   
   b.  On 15 August 1974, the applicant's commander recommended the applicant's request for discharge be approved and that he be issued an undesirable discharge certificate.
   
   c.  On 22 August 1974, the Commanding General, 8th infantry Division, approved the applicant's request for discharge and directed that he be issued an undesirable discharge certificate.
   
7.  A DA Form 2496 (Disposition Form), subject:  Outprocessing Check List, dated 4 October 1974, shows prior to the applicant's discharge, a separation physical was conducted “not over 180 days old.”  However, his record is void of the physical examination, mental health evaluation, or any medical documentation to substantiate his claim that he was unfit for military service at the time of his discharge.

8.  His DD Form 214 shows he was discharged on 8 October 1974, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of a trial by court-martial with an under other than honorable conditions character of service.  It also shows he completed 3 years, 1 month, and 21 days of total active service.

9.  On 12 September 1975, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on 22 February 1978, citing that the board determined he was properly discharged.

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

11  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is an indication the individual is fit.



DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates the applicant underwent a separation examination within 180 days of his discharge action.  Additionally, based on his discharge, it appears he was determined to be physically and mentally qualified for discharge by competent medical authority.

2.  There is no evidence in his available record and he has provided no evidence to show he was physically unfit to perform his duties at the time of discharge.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The evidence further shows he voluntarily requested discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

3.  Additionally, the evidence shows the applicant was age 17 at the time of his enlistment and age 19 when his misconduct began.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20150000931



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ABCMR Record of Proceedings (cont)                                         AR20150000931



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