IN THE CASE OF: BOARD DATE: 9 December 2014 DOCKET NUMBER: AR20140006920 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 a general, under honorable conditions discharge. 2. The applicant states he entered the Army in October 1979 and, in December 1980, he became heavily addicted to drugs and alcohol. He sought help for his problem and was seen by a psychiatrist who diagnosed him with bipolar disorder. However, he never received treatment for his drug and alcohol problem, so he went absent without leave (AWOL). Two months later he was apprehended and sent to Fort Knox, KY. He again asked for treatment of his drug and alcohol problem, but his requests were ignored and he was discharged from the Army. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 24 October 1979 for a period of 3 years. He was awarded military occupational specialty (MOS) 91B (Medical Specialist). 3. He was assigned to Company D, 3rd Battalion, Academy of Health Sciences, Fort Sam Houston, TX, on 25 January 1980. 4. Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 15 February 1980 to 25 March 1980. 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 3 April 1980, shows the applicant was evaluated and found to be fully alert and oriented, his mood was level, thinking process clear, thought content normal, and memory good. He was also found to be mentally responsible for his behavior and that he could distinguish right from wrong. It also shows the applicant had the mental capacity to understand and participate in any administrative separation action or judicial proceedings. Accordingly, the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the command. 6. On 9 April 1980, 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 a lesser included offense 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 (VA) * 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 a submit statement. e. The applicant and his counsel placed their signatures on the document. f. The applicant's statement shows he joined the Army to obtain a job and travel. He indicated that he hated the Army. He stated, "I can't cope with the U.S. Army, I have to [sic] much of an authority complex." He added that his mother was in very poor health and he needed to be with her. 7. His immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge. 8. 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. 9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 June 1980 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 6 months and 17 days of net active service during this period and he had 38 days of time lost. 10. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 11. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his under other than honorable conditions discharge should be upgraded because he became heavily addicted to drugs and alcohol after he entered the Army and sought help for his problems, but his requests were ignored. 2. Records show the applicant went AWOL less than one month after he was assigned to his first permanent duty station. 3. There is no evidence of record, other than his contention in his application to this Board, that he was struggling with alcohol and drug problems during the period of service under review. In any event, this would not serve as an excuse for his period of AWOL. 4. His request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was 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. Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable. 5. During the period of service under review, he had 38 days of lost time and he completed less than 7 months of his 3-year enlistment obligation. Thus, his 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 a general discharge. 6. 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) AR20140006920 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140006920 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1