IN THE CASE OF:	  

		BOARD DATE:	        25 September 2008

		DOCKET NUMBER:  AR20080010077 


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 that his discharge under other than honorable conditions be upgraded. 

2.  The applicant states, in effect, that he was diagnosed with depression and anxiety which kept him from making correct and smart decisions.  He also contends that he was going through a divorce and was under a lot of stress. 

3.  The applicant provides no additional 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 enlisted on 20 February 1986 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 91A (medical specialist). 

3.  On 30 April 1990, charges were preferred against the applicant for desertion (from 5 February 1990 to 21 March 1990) and three specifications of making false official statements.  

4.  On 2 May 1990, 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 conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); 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 under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated that he was sorry for his mistakes, that he had 
“8” years of service in the Army, and that he never had any problems before.  He also states that he was having marital problems, that he could not deal with his problems, and that he was seeing a psychiatrist for his problems.

5.  On 8 May 1990, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

6.  On 16 May 1990, the applicant signed a Medical Examination for Separation Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty; however, I may request a physical examination.  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.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 16 May 1990 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 4 years, 1 month, and 13 days of active service with 44 days of lost time due to desertion.

8.  There is no evidence of record which shows the applicant was diagnosed with depression or any mental condition prior to his discharge.

9.  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.

10.  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.

11.  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.  

12.  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.  Although the applicant contends that he was diagnosed with depression and anxiety prior to his discharge, there is no evidence of record to support this contention.  Evidence of record shows he declined a separation medical examination on 16 May 1990 and it appears his medical records were reviewed by competent medical authorities and it was determined a medical examination for separation was not required.  

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to absenting himself with intent to remain away permanently.  

3.  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.    

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant’s record of service included serious offenses (desertion and making three false official statements) which led to court-martial charges and 
44 days of lost time.  As a result, 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 discharge or a general discharge.

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.


      _______ xxxx_______   ___
               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)                                         AR20080010077





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010077



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1