IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090011913 


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

2.  The applicant states, in effect, that he was not given the benefit of proper counsel and he was provided inadequate information at the time of his discharge.  He further states that during his service his average conduct and efficiency ratings, behavior, and proficiency marks were good; he received awards and decorations; and he had combat service and promotions; but personal problems impaired his ability to serve.  He continues that as a result of his combat service in Southwest Asia he became very depressed, turned to alcohol, and he had post traumatic stress disorder which impaired his ability to serve.  He concludes by stating that he is on the road to recovery after battling depression and alcoholism for years and as a result, he requests an upgrade of his discharge.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Headquarters, U.S. Army Armor Center. Fort Knox, KY, Orders 63-183, dated 2 April 1990; a DA Form 4187 (Personnel Action), dated 22 August 1990; a DD Form 458 (Charge Sheet), dated 26 January 1993; a Headquarters, 3d Battalion, 67th Armored Regiment, Fort Hood, TX, memorandum, dated 5 February 1993; a Memorandum for Persian Gulf War Veterans from the Secretary of Defense, Subject:  Persian Gulf War Health Issues, dated 25 May 1994; a State of Mississippi circuit court order accepting a guilty plea and imposing sentence, dated 13 August 2001; a Clean & Sober Degree issued by Weems Lifecare, dated
29 March 2006; a Certificate of Completion for a 6-week alcohol and drug rehabilitation program, dated 26 August 2006; a Mississippi Parole Board Certificate of Parole, dated 25 February 2009; an Alcoholics Anonymous treatment plan, dated 1 April 2009; and his Marriage Certificate, dated 15 April 2009.

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 (RA) on
3 January 1990.  His record shows that he was trained in and awarded military occupational specialty (MOS) 19K (Armor Crewman).  Upon completion of basic combat and advanced individual training he was assigned to Fort Hood and subsequently deployed to Saudi Arabia.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) he was absent without leave (AWOL) during the period 8 October 1992 to 17 November 1992.

4.  The applicant’s records contain a DD Form 458, which indicates he was charged for being AWOL during the period 8 October 1992 to 18 November 1992.

5.  On 27 January 1993, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

6.  In his voluntary request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 2 February 1993, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 10 February 1993, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge confirms he completed a total 2 years, 11 months, and 28 days of creditable active military service with 40 days of lost time due to AWOL.

8.  The applicant's DD Form 214 also shows in item 18 (Remarks) that he served a tour of duty in Saudi Arabia during the period 12 October 1990 to 18 April 1991.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the applicant was awarded the National Defense Service Medal, Army Service Ribbon, Southwest Asia Service Medal with 2 bronze service stars, Kuwait Liberation Medal, and the Expert Marksmanship Badge with Pistol Bar during his tenure in the Army.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  The applicant's medical records were not available to the Board and the applicant's personnel record is void of any documentation to show he was ever treated, counseled, or diagnosed with depression, alcoholism, or post traumatic stress disorder during his tenure in the Army.  The applicant provided drug and alcohol treatment completion certificates but does not provide any medical documentation in support of his application.

11.  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.

12.  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.

13.  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 contention that his discharge should be upgraded because he was not given the benefit of proper counsel and was provided inadequate information at the time of his discharge was carefully considered.  However, evidence of record shows that prior to voluntarily submitting his request for discharge, the applicant consulted with counsel and he was advised of the implications of the discharge and he acknowledged that he understood the potential adverse affects of his action.  Therefore, lacking evidence to the contrary, the applicant's contention is not supported by the available evidence of record.

2.  There is no record of evidence nor did the applicant provide any documentation to show that he was ever treated, counseled, or diagnosed with depression, alcoholism, or post traumatic stress disorder during his tenure in the Army.  As a result, although the sincerity of the applicant's contention that he suffered from these conditions is not in question, there is an insufficient evidentiary basis to support the applicant's requested relief.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's post-service efforts to improve his life are noteworthy and commendable.  However, based on the foregoing, they present an insufficient basis to warrant an upgrade of the discharge he voluntarily requested in lieu of court-martial.

5.  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.

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)                                         AR20090011913



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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