IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090003173 


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 1986 discharge under other than honorable conditions be upgraded and that the basis for his separation be changed to disability.

2.  The applicant states he did not understand what he was signing when he was instructed to do so by military counsel.  He notes that he was injured in the line of duty and should have received medical benefits or a medical separation.  

3.  The applicant states that he was dealing with serious family loss at the time, making his behavior “somewhat” undesirable.  He notes that a psychiatric evaluation brought out these issues and indicated the issues were the cause of his behavior.  He also states that injuries he sustained while in the Army were not dealt with and now benefits are not available to him because of his discharge.

4.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 14 September 1983.  He was 21 years old at the time and a high school graduate.  Following successful completion of training, the applicant was assigned to an Air Defense Artillery element in Germany as an NBC (nuclear, biological, chemical) specialist in February 1984.

3.  In June 1984 the applicant was advanced to pay grade E-3.  He was reduced to pay grade E-2 in December 1984 as a result of punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to secure his weapon following range firing on 2 November 1984.  By November 1985 the applicant had been promoted to pay grade E-4.

4.  In January 1986 the applicant was punished again under Article 15 of the UCMJ, this time for failing to set a chemical alarm, putting CS (tear agent) powder in the sleeping bag of a noncommissioned officer, and wrongfully storing a simulator booby trap with accessories in his desk.  As a result of this UCMJ action the applicant was reduced to pay grade E-2.

5.  In February 1986 the applicant underwent a psychiatric evaluation which noted the applicant had lifelong problems with interpersonal relationships exacerbated after the death of his parents.  The evaluating psychiatrist noted the applicant displayed a rigid primitive self centeredness and general lack of trust in others.  He was diagnosed with a narcissistic personality disorder and his knee pain was also noted.

6.  The evaluating psychiatrist went on to note the applicant met induction and retention standards and that there was no psychiatric disease or defect which warranted disposition through medical channels.  He noted the applicant was mentally responsible, able to appreciate any wrongfulness in his conduct, and to conform his conduct to the requirements of the law.

7.  A DD Form 458 (Charge Sheet) was prepared on 7 April 1986 charging the applicant with one day of being absent without leave (AWOL) and communicating a threat to kill a sergeant first class.  Statements associated with the charge sheet indicate the applicant told a chaplain that he had a loaded gun and intended to kill his platoon sergeant.  The chaplain stated the applicant had related that same threat several times.  It was also noted that the applicant did in fact have a gun, which had been confiscated from him earlier but then returned.
8.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial.  In doing so, he acknowledged that he could be furnished an Under Other Than Honorable Conditions Discharge Certificate and as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf and waived his entitlement to a separation physical examination.  

9.  The applicant’s available service medical records do indicate that he received a permanent physical profile for bilateral knee pain in January 1986 and he had been treated for headaches.  He was scheduled for a medical evaluation board (MEB) on 9 April 1986.

10.  On 26 April 1986, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

11.  The applicant was discharged on 15 May 1986, under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with 2 years, 6 months, and 29 days of total active service.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, 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.  At that time, an under other than honorable conditions discharge was normally considered appropriate.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Additionally, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the commander exercising general court-martial jurisdiction over the Soldier determines the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.
14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that he was not aware of what he was signing is not supported by the evidence of record.  The evidence shows the applicant voluntarily requested discharge in lieu of trial by court-martial and that in signing the request he acknowledged the ramifications of his decision.   

2.  The applicant also argued that his inability to deal with his family situation was the basis for “undesirable” behavior and that a psychiatrist noted those issues were the cause of his behavior.  However, the mental status evaluation he underwent concluded that in spite of his narcissistic personality he was in fact mentally responsible, able to appreciate any wrongfulness in his conduct, and to conform his conduct to the requirements of the law.

3.  While the applicant may have suffered from knee problems and headaches, neither of these conditions were the root of his misconduct and as such once charges were preferred he was precluded from processing via the Army’s disability system.

4.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would have jeopardized his rights.



5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge nor a change in the reason to show he was separated by reason of physical disability.  He has not shown error, injustice, or inequity for the relief he now requests.  

6.  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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090003173



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ABCMR Record of Proceedings (cont)                                         AR20090003173



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