IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20090000313 


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 is requesting a discharge upgrade because he is a Persian Gulf War veteran and that when he returned from the war he was having mental health difficulties which caused him problems in the military.  He contends that he was unaware of the problems at the time and that he was discharged without receiving treatment from the military.  He goes on to state that after several years he was diagnosed with Post Traumatic Stress Disorder (PTSD) by a private psychiatrist and that he is still suffering from readjustment problems associated with his Persian Gulf combat experience.  He indicates that he would like his discharge upgraded to honorable or a general discharge so he can seek medical benefits from the Department of Veterans Affairs (DVA).     

3.  The applicant provides a 1997 medical record which shows he was diagnosed with PTSD, a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 30 September 1987.  He successfully completed One Station Unit Training in military occupational specialty 13B (cannon crewmember).  He attained the rank of specialist on 
30 November 1989 and he served in Southwest Asia from 27 August 1990 to 
11 April 1991.  

3.  On 27 April 1993, charges were preferred against the applicant for two specifications of dishonorably failing to pay a debt, one specification of uttering bad checks, four specifications of failing to go at the time prescribed to his appointed place of duty, and of operating a vehicle while drunk.  Trial by special court-martial was recommended.  

4.  On 27 May 1993, 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 DVA; 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 requested a general discharge and stated that he had been in the Army for 6 years and that he served his country proudly in Operation Desert Shield/Storm.  He stated that up to this point in his career he had never been in any trouble, that he made a mistake, and he requested that his dedication to the military be considered.

5.  On 21 June 1993, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 26 July 1993 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 5 years, 9 months, and 27 days of creditable active service.

7.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge on 26 July 1993.

8.  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.

9.  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.

10.  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.  

11.  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 having mental health difficulties when he returned from the Persian Gulf War or that he was suffering from PTSD at the time, there is no evidence to show he was having psychiatric problems in 1993 that interfered with his ability to perform his military duties or that were the underlying cause for the misconduct that led to his discharge.  

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
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.  Since the applicant’s record of service included serious offenses for which special court-martial charges were preferred, 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 a general discharge or an honorable discharge.

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)                                         AR20090000313





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ABCMR Record of Proceedings (cont)                                         AR20090000313



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