BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016656 


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

2.  The applicant states he just returned from Iraq and his mental state was not good at the time of the incident.  He adds that he felt his government should have evaluated and helped him.  The applicant offers that this is the biggest mistake of his life and he would like to see it corrected.

3.  The applicant provides correspondence to his Member of Congress.

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 August 1989.  He served in Southwest Asia from 13 October 1990 to 20 April 1991.

3.  On 23 September 1991, charges were preferred against the applicant for being absent without leave (AWOL) from 24 July 1991 to 18 September 1991.

4.  On 19 September 1991, the applicant signed a "Medical Examination for Separation Statement of Option" form showing that he did not desire a separation medical examination.

5.  On 24 September 1991, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.

6.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, and that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He was advised that if he received an Under Other Than Honorable Conditions Discharge Certificate that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Department of Veterans Affairs (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant elected not to submit a statement in his own behalf.

7.  On an unspecified date, the appropriate authority approved the applicant's voluntary request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

8.  The applicant's DD Form 214 shows that he was separated on 20 November 1991 with discharge characterized as under other than honorable conditions.  The applicant had completed 2 years, 1 month, and 22 days of active service with 53 days of lost time due to AWOL.

9.  The applicant provided copies of his Congressional correspondence in which he and the Public Safety Commissioner of Rome, New York requested assistance from the Member of Congress in resolving the applicant's discharge upgrade issue.

10.  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.

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 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 mental state from his service in Iraq and the government's lack of involvement in his evaluation led to indiscipline was considered.  However, there is no evidence and the applicant has not provided any to show that he sought counseling or treatment concerning his mental state.  In fact, the evidence of record shows that the applicant declined a separation medical examination.  Therefore, the contention by the applicant that his situation led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Evidence of record shows the applicant’s request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  The applicant’s record of service included 53 days of AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to a general, under honorable conditions or an honorable 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)                                         AR20090016656



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ABCMR Record of Proceedings (cont)                                         AR20090016656



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