IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090011889 


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 (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, it was determined he was mentally ill while he was serving on active duty and he was offered an honorable discharge with benefits; however, he chose to continue serving.  He claims that given his mental state, he was unfit to make the decision to accept his discharge and he should have automatically been given an HD.

3.  The applicant further states that because he is currently under psychiatric care for his mental instability which was evident during his active duty service, his UOTHC discharge should be upgraded to an HD.

4.  The applicant provides a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) and one page of the Army Discharge Review Board (ADRB) decision in his case 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 enlisted in the Regular Army and entered active duty on 8 July 1980.  His DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost Under Section 972, Title 10, U.S. Code) that he accrued 160 days of lost time during an absent without leave (AWOL) period from 27 December 1980 to 4 June 1981.  His record documents no acts of valor or significant achievement.

3.  On 8 June 1981, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content were normal, he was fully alert and oriented, his mood or affect was unremarkable, his thinking process was clear, and his memory was good.  The examining physician further determined the applicant met retention requirements and that he had the mental capacity to understand and participate in separation proceedings.

4.  On 9 June 1981, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 27 December 1980 to on or about 5 June 1981.

5.  On 10 June 1981, 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 a 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).

6.  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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of an undesirable discharge and indicated he would submit a statement on his own behalf.

7.  In the statement he submitted he indicated he was AWOL from Germany because of family problems.  He stated he stayed with his wife who was supposed to have been pregnant when he found out that he was sick.  He also stated his wife left him because of an argument and filed false charges against him because her mother told her to do so.

8.  The separation authority approved the applicant's request for discharge and directed that he receive a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 14 July 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he completed a total of 6 months and 29 days of creditable active military service and accrued 160 days of lost time due to AWOL.

9.  On 9 August 1984, after having carefully reviewed the applicant's record and the issues he presented, the ADRB concluded the applicant's discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

10.  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 at any time after the charges have been preferred.  Although the separation authority may authorize a general under honorable conditions discharge (GD) or HD if warranted by the member's record of service, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

11.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that a 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 HD.  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 contention that his UOTHC discharge should be upgraded to a full HD because he tried to continue his service on active duty with a mental illness was carefully considered.  However, there is insufficient evidence to support this claim.  His record shows he underwent a mental status evaluation that confirmed he was mentally competent to understand and participate in separation proceedings and that he met medical retention standards.  As a result, he clearly was not suffering from a disqualifying mental illness that would have supported his separation processing through medical channels.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, 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.  Given the applicant's undistinguished record of service, his overall record of service clearly did not support the issuance of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade at this late date.  Absent any evidence of record or independent evidence submitted by the applicant to support his claim that he was mentally ill at the time of his discharge processing, there is an insufficient evidentiary basis to support granting the requested relief in this case.

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)                                         AR20090011889



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011889



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1