IN THE CASE OF:	

		BOARD DATE:	 08 April 2010 

		DOCKET NUMBER:  AR20090017502 


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 fully honorable.

2.  The applicant states that he suffered from post-traumatic stress disorder (PTSD) during his military service and was just diagnosed with this disorder in 2007.  Had it been identified in "1988," his decisions would have been different.  He also has physical and mental trauma.

3.  The applicant provides copies of two letters from the Georgia Department of Labor, dated 18 and 24 August 2009, and a copy of his psychological evaluation report, dated 10 October 2008, in support of his request.

4.  On 18 December 2009, the applicant's Member of Congress submitted copies of the documents the applicant previously provided.

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 on 24 July 1985 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  The applicant's records also show he was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 15 September 1986, he departed his Fort Benning, GA, unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 15 October 1986.  He surrendered to military authorities at Fort McPherson, GA, on 8 December 1986.

5.  On 10 December 1986, his command preferred court-martial charges against him for one specification of being AWOL during the period from on or about 15 September 1986 through on or about 8 December 1986.

6.  On 11 December 1986, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever.  He understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."  He also elected to submit a statement on his own behalf.

8.  He stated that his pregnant wife was ill and was about to have a nervous breakdown.  He was then told he would proceed on a permanent change of station to Korea.  He used his chain of command to request a deletion from his assignment, but he was put off.  When the time came for him to go to Korea, he went AWOL and his life suddenly became better.  When he turned himself in, he found out that his chain of command was able to request a compassionate reassignment for him but did not do so.

9.  On 17 December 1986, his immediate commander recommended approval of his discharge with an under other than honorable conditions character of service. 
The immediate commander remarked that the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.

10.  On 17 December 1986, his intermediate commander also recommended approval of the applicant's discharge with an under other than honorable conditions character of service.  He remarked that the applicant's statement was incorrect or incomplete.  He was alerted for assignment to Korea, but because of his wife's high risk pregnancy, his chain of command helped him get a deletion from this assignment.  However, upon his unit's return from training, he discovered that his wife had vacated their residence and left him.  He then went AWOL to locate and rejoin his wife.  Ironically, the unit received notice of his deletion on the date he went AWOL.

11.  On 13 January 1987, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions character of service and be reduced to the lowest enlisted grade.  On 4 February 1987, he was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form further shows he completed 1 year, 3 months, and 18 days of creditable active service and had 84 days of lost time.

12.  There is no indication in his medical records that he suffered from PTSD, physical or mental trauma, or any other medical condition.

13.  His records contain a U.S. Army Armor Center Form 2722 (Medical Examination for Separation Statement of Option), dated 9 December 1986, wherein he elected not to undergo a separation medical examination.

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

15.  He submitted the following documents:

	a.  a copy of a letter, dated 24 August 2009, from the Georgia Department of Labor showing a diagnosis of anxiety disorder, PTSD, alcohol dependency, chronic headaches, and severe psychosocial and environmental stressors;

	b.  a copy of a letter, dated 18 August 2009, from the Georgia Department of Labor referring him to a vocational rehabilitation counselor; and

	c.  a copy of a psychological evaluation report, dated 10 October 2008, showing a diagnosis of PTSD.

16.  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.

17.  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.

18.  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 to honorable.

2.  His records show 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His current diagnosis and medical conditions are noted.  However, there is no evidence in his service records that he was diagnosed with PTSD, trauma, or any other medical condition that led him to go AWOL during his military service.  By his own admission, his AWOL was a personal choice, unrelated to any medical condition that he allegedly had.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  He did not submit evidence that would satisfy this requirement.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general 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)                                         AR20090017502



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017502



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1