RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001512 


	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.









      The following members, a quorum, were present:













	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 under other than honorable conditions (UOTHC) discharge be upgraded.   

2.  The applicant states, in effect, that he is being treated for depression and there were overwhelming circumstances that led to his going absent without leave (AWOL), which ultimately led to his discharge.  

3.  The applicant requests a review of his military medical records, but provides no additional documentary evidence in support of his application.  

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's record shows that he enlisted in the Regular Army and entered active duty on 22 November 1983.  His Personnel Qualification Record (DA Form 2-1) shows he was trained in and awarded military occupational specialty (MOS) 91P (X-Ray Specialist).  Item 18 (Appointments and Reductions) shows that he was promoted to specialist (SPC) on 2 November 1984, and that this is the highest rank he attained while serving on active duty.  

3.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 shows that he earned the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's disciplinary history includes his receipt of a Letter of Reprimand (LOR) on 24 June 1986, for the actions that resulted in his apprehension by civil police on 31 May 1986, which included his possession of drug paraphernalia, which the issuing officer indicated was an extremely serious offense.  
5.  On 29 July 1986, the applicant departed AWOL from his unit at Fort Devens, Massachusetts, and on 28 August 1986, he was dropped from the rolls of the organization.  

6.  The applicant's Official Military Personnel File (OMPF) is void of any military medical records that indicate he suffered from a disabling mental or physical condition that would have supported his separation processing through medical channels while serving on active duty. 

7.  The applicant's OMPF does not include a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a properly constituted separation document (DD Form 214) that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, on 7 October 1986, after completing a total of 2 years, 8 months, and 24 days of creditable active military service and accruing 50 days of time lost due to AWOL.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.  
The applicant's 

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An UOTHC discharge is normally appropriate for members separated under these provisions.  The separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record of service during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was suffering from depression at the time of his discharge was carefully considered.  However, even if true, this factor is not sufficiently mitigating to support an upgrade of his discharge at this late date. His OMPF is void of any military medical records indicating he was suffering from a disabling mental or physical condition that would have support his separation processing through medical channels at the time of his discharge. 
2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UD he received was normal and appropriate under the regulatory guidance, and his undistinguished record of service clearly did not support a GD or HD at the time, nor does it support an upgrade now.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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


ABCMR Record of Proceedings (cont)                                         AR20080001512


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508