IN THE CASE OF:	

		BOARD DATE:	 23 February 2010 

		DOCKET NUMBER:  AR20090016146 


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.

2.  The applicant gives a brief history of his military career and describes incidents which occurred during his deployment in Saudi Arabia.  He states that it has been over 16 years and he has been asking for help but has not received any responses.  He would like his discharge changed so he can receive medical assistance and disability benefits.  The applicant continues by stating that he was in perfect health when he entered the military, but his health was not the same when he left the military.  It seems as though he is always depressed, has suicidal thoughts, and has hit rock bottom with his condition of post-traumatic stress disorder (PTSD).

3.  The applicant provides the following documents in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty),

	b.  Department of Veterans Affairs (VA) Form 10-5345 (Request for and Authorization to Release Medical Records or Health Information),

	c.  Veteran Information Form,

	d.  Military History,

	e.  Health History Data Sheet,

	f.  Comprehensive Military History - Generic,

	g.  Intake Assessment and Mental Status Evaluation,

	h.  Client Treatment Plan,

	i.  letter from the VA,

	j.  Fort Bayard Medical Center Yucca Lodge medical summary, and

	k.  letter from the Albuquerque Vet Center.

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 enlisted in the U.S. Army Reserve Delayed Entry Program on 3 September 1980.  He enlisted in the Regular Army on 8 September 1980.  However, his DD Form 214 incorrectly reflects 3 September 1980 as the date he entered active duty.  He was honorably discharged on 14 July 1983 for the purpose of immediate reenlistment.  He reenlisted on 15 July 1983 and was again honorably discharged on 10 January 1988 for immediate reenlistment.  His highest grade attained was sergeant.

3.  The applicant reenlisted on 11 January 1988 for a period of 6 years.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Southwest Asia from 26 January 1991 to 24 April 1991.

5.  On 28 July 1993, charges were preferred against the applicant for being absent without leave (AWOL) from 30 November 1992 to 21 July 1993.

6.  On 29 July 1993, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

7.  On 27 August 1993, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with the issuance of a UOTHC discharge.

8.  Accordingly, the applicant was discharged from active duty on 20 September 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 5 years and 18 days of active military service during the period under review.  He had 234 days of lost time due to AWOL.  He completed a total of 12 years, 4 months, and 21 days of active military service, although his DD Form 14 incorrectly credits him with an additional 5 days of active service for the inactive period in the U.S. Army Reserve Delayed Entry Program.

9.  On 22 April 1998, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  On 28 July 2009, the applicant was a self-referral to the Fort Bayard Medical Center Yucca Lodge for alcoholism and related mental health issues (depression/anxiety).  His assessment indicated that he met the criteria for alcohol dependence and PTSD.

11.  The applicant provided a letter, dated 14 September 2009, from a social worker/readjustment counseling therapist at the Albuquerque Vet Center.  The therapist indicated the applicant had been in psychotherapy since 3 October 1994 for issues associated with combat.  The applicant was in combat during Operation Desert Storm with the special forces from 1989 to 1991.  He experienced several combat stressors including the death of two friends during an ambush.  In the therapist's opinion, the applicant developed PTSD as a result of his combat traumas which resulted in his AWOL.  The therapist suggested that the applicant's discharge be changed from other than honorable conditions to an honorable discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 UOTHC 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 statements regarding the circumstances which led to his discharge are noted.  Although he may now feel that his UOTHC discharge should be upgraded, his service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

4.  The applicant's record of service shows he was charged for being AWOL for 234 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general under honorable conditions discharge.

5.  The applicant's evaluations from the VA, assessments from the Fort Bayard Medical Center Yucca Lodge, and the letter from the Albuquerque Vet Center were carefully reviewed.  However, these documents are insufficiently mitigating to warrant relief in this case.  Therefore, he has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

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)                                         AR20090016146



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ABCMR Record of Proceedings (cont)                                         AR20090016146



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