BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090006319 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, a psychiatric report shows he cannot be around people, which could explain why he went absent without leave (AWOL).  He also states he was depressed as a child and thought the military could help. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an Indianapolis Institute for Families letter, dated 3 November 2004, 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's record shows he initially enlisted in the Indiana Army National Guard (INARNG) on 17 January 1976, for a period of 6 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments & Reductions), that he was advanced to private (PV2)/E-2 on 10 May 1976, and that this is highest rank/grade he held during his military service.  Item 9 (Awards and Decorations) shows he earned the Expert Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar during his military service tenure.  His record documents no acts of valor or significant achievement.

4.  On 28 August 1979, the unit commander initiated a request for active duty orders, based on the applicant having accrued thirteen unexcused absences in a one year period.  On 30 November 1979, the Military Department of Indiana, Adjutant General's Office, issued Orders Number 232-13, which directed the applicant's discharge from the INARNG on 27 January 1980 and his involuntary order to active duty on 28 January 1980.

5.  On 8 September 1980, the applicant underwent a mental status evaluation during which it was noted that his behavior was normal, he was fully alert and oriented, his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  It further indicated that he had the mental capacity to understand and participate in separation proceedings, he was mentally responsible, and he met retention standards.  There are no other medical records on file that indicate the applicant was suffering from a disabling mental or medical condition that would have supported his separation processing through medical channels at the time of his discharge processing. 

6.  On 11 September 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 
28 January 1980 until on or about 29 August 1980.

7.  On 12 September 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).
8.  In his request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

9.  On 6 October 1980, the separation authority approved the applicant’s request for discharge and directed he be reduced to private (PV1)/E-1 and that he be issued an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 12 November 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 2 months and 14 days of creditable active military service and that he accrued 218 days of time lost due to AWOL.  

10.  On 6 June 1984, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

11.  The applicant provides an Indianapolis Institute for Families letter, dated 2 November 2004, which shows the applicant was diagnosed with having a severe mental disorder.

12.  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 a general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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.  

14.  Paragraph 3-7b of the same regulation provides that a general, under honorable conditions discharge (GD) 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 request that his UOTHC discharge be upgraded to an HD because he suffers from a severe mental disorder was carefully considered.  However, the evidence of record confirms the applicant underwent a mental status evaluation during his discharge processing that determined he had the mental capacity to participate in separation proceedings and that he was mentally responsible.  Further, his record is void of any medical treatment records indicating that he suffered from a mental or physical disability that rendered him unfit for service, or that would have supported his separation processing through medical channels at the time of his discharge processing.  As a result, absent any evidence that he suffered from an unfitting mental disorder at the time of his discharge processing, a mental disorder diagnosis more than
25 years after the fact alone is not sufficiently mitigating to support upgrading his discharge.  

2.  The evidence of record further shows the applicant was charged with the commission of an offense which was punishable with a punitive discharge under the UCMJ and that after consulting with legal counsel and being advised of his rights and the effects of an UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

3.  The applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and accurately reflects his overall undistinguished record of service.  His record of service clearly did not support the issue of an HD or a GD by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.  


4.  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 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)                                         AR20090006319



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ABCMR Record of Proceedings (cont)                                         AR20090006319



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