BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090008142 


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 an upgrade of his under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that in late 1984, he sustained a head injury while stationed in Korea which resulted in extensive hospital inpatient stay.  As soon as he was able to travel, he was medically evacuated back to the United States.  He suffered from Post Traumatic Stress Disorder (PTSD) and loss of memory and strongly feels that going in an absent without leave (AWOL) status was due to these injuries as he thoroughly enjoyed his military service.  He still experiences residual effects from the head trauma and requests his discharge be upgraded. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 February 1985, and copies of various medical charts, reports, consults, records, and clinical documents, dated on miscellaneous dates throughout his military service, 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.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 3 August 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3. 

3.  The applicant’s records also show he served in Korea from on or about 2 August 1984 to on or about 14 September 1984.  His awards and decorations include the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  

4.  On 10 September 1984, the applicant underwent a medical examination due to a history of head trauma with episodic headaches, nausea, and decreased memory.  He was diagnosed with PTSD and received medications.  During hospitalization, he also underwent a CT scan of the head and an EEG which were both normal. He was ultimately transferred to the United States and admitted to Wright Patterson Air Force Base for further evaluation.  

5.  On 4 October 1984, having left the hospital on an authorized pass and failing to return, the applicant was reported in an AWOL status and on 3 November 1984, he was dropped from the Army rolls.  He was apprehended by civil authorities in Wichita, KS, and was returned to military control on 25 December 1984.

6.  On 5 November 1984, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 4 October 1984 through on or about 25 December 1984.  

7.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 15 February 1985 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  He completed 2 years, 3 months, and 22 days of creditable active service and had 82 days of lost time.

8.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s    15-year statute of limitation.

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.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 15 February 1985 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

4.  The applicant’s injury/illness that warranted his hospitalization in Korea and subsequent transfer to the United States for further evaluation are noted; however, there is no evidence that this illness/injury caused him to go AWOL.  

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090008142





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ABCMR Record of Proceedings (cont)                                         AR20090008142



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