IN THE CASE OF:	

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080006645 


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 (UOTHC) be upgraded.

2.  The applicant states that he had two discharges.  At the end of his 10th year, he had a nervous breakdown.  He asked for release, and they ignored him.  He would like to become eligible for his military benefits.

3.  The applicant provides no additional evidence.

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 6 July 1976.  He was honorably discharged on 6 January 1980.  He immediately reenlisted on 7 January 1980 for 6 years.  

3.  On 22 January 1985, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty.

4.  On 17 July 1985, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for pawning military property, valued at about $130.00.

5.  On 10 June 1986, the applicant signed a Personnel Control Facility Information Sheet checking that he did not request a physical and he understood that by waiving the physical he could be ineligible for any later medical claim against the government.  He also signed a separate Medical Examination for Separation Statement of Option, indicating he did not desire a separation medical examination.  

6.  A Personnel Control Facility Interview Sheet, dated 12 June 1986, indicated the applicant went AWOL because of a lot of family pressure.  He asked the first sergeant for 2 months to release him because he could not take it any more.

7.  On 12 June 1986, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about               12 August 1985 to on or about 10 June 1986.

8.  On 12 June 1986, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration (VA) benefits.  He submitted no statement in his own behalf.

9.  On 16 July 1986, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

10.  On 4 August 1986, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a discharge UOTHC.  He had completed a total of 9 years, 3 months, and 1 day of creditable active service and had 311 days of lost time.

11.  On 24 October 1988, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.  

12.  The applicant’s complete service medical records are available.  They show that the applicant last sought treatment, for back pain and the flu, on 6 and          7 February 1985.

13.  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 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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

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, 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.

16.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, “Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military …service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant contended that at the end of his 10th year he had a nervous breakdown and that he asked for release, but they ignored him.  It does not appear that he would have been eligible for any type of administrative “release.”  His term of service would not have expired for another five months.  There is no evidence to show he ever applied for a hardship or similar type of discharge.  There is no evidence to show he ever sought assistance from outside command channels, such as from the office of the chaplain.  There is no evidence of record to show he sought treatment for his “nervous breakdown” from mental hygiene.  

3.  Considering the applicant’s years of Army experience, the lack of evidence to support his contentions, and his lengthy period of AWOL, there is insufficient evidence that would warrant granting the relief requested.

4.  Since the applicant would have been eligible for an honorable discharge on   6 January 1980, it appears that the VA is statutorily required to treat him for any medical conditions that arose during his first period of service if his request for benefits lies in the healthcare area.  However, eligibility for veterans' benefits of any type does not fall within the purview of the Army.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.




 _   _____xxxxx______________
       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)                                         AR20080006645





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ABCMR Record of Proceedings (cont)                                         AR20080006645



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