RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060013983 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Michael Flynn

Member

Mr. Edward Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his uncharacterized discharge be changed to honorable. 

2.  The applicant states that there is no doubt that he was a very good Soldier.  He contends, in effect, that he was bi-polar, depressed, and suffered from Post Traumatic Stress Disorder and Adult Attention Deficit Disorder.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 July 1989.  The application submitted in this case is dated 10 September 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 2 August 1988 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).    

4.  On 29 March 1989, the applicant went absent without leave (AWOL) and returned to military control on 1 May 1989.  On 8 May 1989, charges were preferred against the applicant for the AWOL period.

5.  On 2 May 1989, the applicant signed a Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  Apparently, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.  
 
6.  On 8 May 1989, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  He elected not to make a statement in his own behalf. 

7.  On 7 June 1989, the intermediate commander recommended discharge with the issuance of an uncharacterized separation. 

8.  On 16 June 1989, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.  The applicant’s DD Form 214 shows that he was discharged on 20 July 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  His character of service was uncharacterized and he had served a total of 10 months and 17 days of active service with 32 days of lost time due to AWOL.  

10.  There is no evidence of record which shows the applicant was diagnosed with a medical or mental condition prior to his discharge. 

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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, a discharge under other than honorable conditions is normally considered appropriate.
13.  Army Regulation 635-200 states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status.  Entry level status is defined as the first 180 days of continuous active duty.  

14.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record which shows the applicant was diagnosed with a medical or mental condition prior to his discharge on 20 July 1989.  

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

3.  It is noted that the applicant’s DD Form 214 incorrectly shows his character of service as uncharacterized.  His DD Form 214 should have described his character of service as under other than honorable conditions.

4.  Since the applicant had a 32-day AWOL offense that led to referral of a court-martial charge, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 20 July 1989; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 July 1992.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

CG____  __MF____  __EM____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____Curtis Greenway___
          CHAIRPERSON




INDEX

CASE ID
AR20060013983
SUFFIX

RECON

DATE BOARDED
20070412
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE
19890720
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.