IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080011651 


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 corrected to a medical discharge.  He also requests a personal appearance before the Board.

2.  The applicant states he was mentally disabled when he was discharged.  He could not apply earlier because he had a "care taker" and he was unable to care for himself.  He was drawing social security benefits for mental disability at the time he was charged with being absent without leave (AWOL).  He states, "I should have a medical discharge."

3.  The applicant provides a letter from a disability consultant representing the applicant for the purpose of Social Security benefits, dated 3 June 2008, which includes a facsimile transmission cover sheet and history report addressed to the Department of Veterans Affairs (VA) Medical Center from a disability consultant, dated 24 April 2004; a letter to the VA, dated 24 April 2008; and a Social Security Administration (SSA) form entitled Disability Determination and Transmittal, dated 26 September 1986, 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 in the Regular Army on 31 August 1981.  He completed training, reenlisted, advanced to sergeant (E-5), and earned the Good Conduct Medal.

3.  On 27 March 1986, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for using marijuana.  The punishment comprised reduction to pay grade E-4, forfeiture of $476.00 pay per month for 2 months (suspended), extra duty for 45 days, and restriction for 45 days.  The applicant did not appeal.

4.  The applicant sought mental health assistance on 16 June 1986 due to stress from financial problems and difficulties in his unit.  A mental health consultation on 18 June 1986 produced a diagnosis of "Occupational Problems."

5.  He was AWOL from 1 August 1986 until he was apprehended by civilian authorities on 6 February 1990.

6.  On 13 February 1990, the applicant waived a separation medical examination.

7.  On 16 February 1990, the applicant acknowledged that he had consulted with counsel and understood that the government had not yet assembled the documents necessary to support a conviction in a trial by court martial.  Nevertheless, he stated, "I knowingly, willingly, and voluntarily declare I was absent without leave from the U.S. Army from 1 August 1986 to 6 February 1990." He further stated that he made that admission in order to facilitate the administrative process of discharging him with a UOTHC discharge.

8.  On 3 April 1990, the applicant was discharged UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He had 5 years and 28 days of creditable service and 3 years, 4 months, and 16 days of lost time.

9.  Army Regulation 635-200 (Personnel 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 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.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

11.  The SSA Disability Determination and Transmittal form, dated 26 September 1986, that the applicant and counsel submitted shows that he was diagnosed as "Schizophrenia Paranoid."  It lists 15 June 1986 as the date the disability began.

DISCUSSION AND CONCLUSIONS:

1.  There is adequate available evidence upon which to base a decision in this case.  A personal appearance hearing is not warranted.

2.  There is no available evidence that the applicant was mentally impaired, either on 1 August 1986 when he went AWOL, or on 16 February 1990 when he requested discharge.  Furthermore, the SSA form that seems to indicate a 15 June 1986 onset of a psychiatric disability is highly questionable.  The applicant was still in his unit performing his military duties on that date.  Additionally, a mental health consultation on 18 July 1986 recorded no indication of any such problem.  Finally, the applicant waived an official medical examination on 13 February 1990, an unlikely action for someone who had suffered through such a challenging disability.

3.  There is no line of duty determination in this case.  Any number of causative events could have occurred while the applicant was AWOL.  A medical discharge is not appropriate.

4.   The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.
6.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

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)                                         AR20080011651



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ABCMR Record of Proceedings (cont)                                         AR20080011651



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