IN THE CASE OF:	

		BOARD DATE:	1 October 2009   

		DOCKET NUMBER:  AR20090007354 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his medical records show he had reached out to his chain of command for help with family, mental health, overall health issues, and problems with other Soldiers that led to his developing a substance abuse problem and depression leading to going absent without leave (AWOL).  He further states that up until that point he was an ideal Soldier who loved his job and wanted a life-long military career.  He states he contracted HIV while stationed at Fort Hood, Texas and on active duty.  Not long after he was discharged he was diagnosed as being HIV positive, and he was suffering from depression/bi-polar mania.  He asks that the Board review his military performance, medical records, and other available information.  

3.  The applicant provides a copy of a letter written to a Congressman, two letters from the Department of Veterans Affairs (VA), and a copy of a memorandum from the applicant’s commander requesting that the applicant be discharged in support of this 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 military records show he enlisted in the Regular Army on 14 October 1997.  He was awarded the military occupational specialty of wheel vehicle repairer.  The applicant's records do not show any significant acts of achievement or valor or noteworthy military performance during his military service.  The medical evaluation completed prior to his discharge indicated the applicant suffered from an adjustment disorder with mixed disturbance of emotions and conduct, and cannabis abuse.  It also indicated the applicant showed antisocial/passive-aggressive personality traits. 

3.  On 22 February 2000, charges were preferred against the applicant for being AWOL from 31 December 1999 to 14 February 2000.

4.  On 22 February 2000, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of court-martial.  He acknowledged that he was making the request of his own free will.  He further acknowledged he understood that by requesting a discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ).  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate.  He acknowledged he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all veterans benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.

5.  On 8 February 2001, the applicant's commander recommended approval of the applicant's request for discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

6.  On 6 April 2001, the separation authority approved the applicant's request for discharge and directed he be discharged under other than honorable conditions.

7.  On 30 April 2001, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 issued to the applicant shows he completed a total of 3 years, 5 months, and 1 day of total creditable active military service with 46 days of lost time due to being AWOL.

8.  On 29 March 2002, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

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, 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 the time, a discharge under other than honorable conditions was 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.  The applicant contends he had several issues including family, mental health, overall health, and problems with other Soldiers that led to substance abuse and depression which finally led to him going AWOL.  His records show that he had 46 days of lost time due to being AWOL.  He was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, he admitted guilt and voluntarily requested discharge in lieu of court-martial.

2.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

3.  Documents contained in the applicant's records confirm that his rights were protected throughout the discharge process.

4.  The applicant's record contains no documentary evidence of acts of valor or service that would warrant special recognition.  His medical records show an adjustment disorder and cannabis abuse.  Given the applicant's undistinguished record of service and absent any medical or other mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

5.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his 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)                                         AR20090007354



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ABCMR Record of Proceedings (cont)                                         AR20090007354



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