IN THE CASE OF:	

		BOARD DATE:	  04 May 2010

		DOCKET NUMBER:  AR20090018542 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he wants to appeal all decisions concerning pay, discharges, Department of Veterans Affairs (VA) decisions, Social Security Administration decisions, and State welfare decisions.  He states he has been denied benefits because of his "work-related schizophrenia with psychotic or anti-social and delusional thoughts."

3.  The applicant provides a copy of a VA letter, dated 5 October 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 military personnel records show he enlisted in the Regular Army on 6 February 1984 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11B (Infantryman).

3.  On 7 June 1984, the applicant was assigned to the 3rd Battalion, 7th Infantry, at Fort Benning, GA.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on:

* 14 September 1984 for wrongfully carrying a weapon on post and being absent without leave (AWOL) from on or about 5 September to on or about 6 September 1984
* 21 December 1984 for wrongful use of marijuana
* 19 February 1985 for storing ammunition in his room
* 8 March 1985 for being absent from his appointed place of duty

5.  On 21 August 1985, the applicant was assigned to the 1st Battalion, 19th Infantry, at Schofield Barracks, HI.

6.  On 21 January 1986, the applicant departed AWOL and was dropped from the unit rolls on 21 February 1986.

7.  On 9 May 1986, the applicant was apprehended by civilian authorities in Toledo, OH, for carrying a concealed weapon.  He was confined to the Lucas County Jail and on 8 July 1986 he was sentenced to 75 days in jail by the Common Pleas Court, Toledo, OH.  He was released from jail on 16 July 1986 and returned to military control.

8.  On 22 July 1986, court-martial charges were preferred against the applicant for being AWOL from on or about 21 January 1986 to on or about 16 July 1986.

9.  On 23 July 1986, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

10.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the:

* basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice
* possible effects of an under other than honorable conditions discharge if his request was approved
* procedures and rights available to him

12.  On 31 July 1986, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be reduced to private/pay grade E-1 and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 22 August 1986, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service.  He had completed 2 years and 10 days active service that was characterized as under other than honorable conditions.  He had 186 days of lost time.

14.  The applicant's service medical records were not available for review.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  The VA letter addressed to the applicant, dated 5 October 2009, stated that the VA had determined he was not eligible for the VA Home Loan benefit due to the character of his service.

17.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation states 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.

18.  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.

19.  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 his discharge under other than honorable conditions should have been upgraded to an honorable discharge.  He contends he is being denied benefits because of his "work-related schizophrenia with psychotic or anti-social and delusional thoughts."

2.  The applicant's service medical records were not available for review.  There is no evidence in his military personnel records of his having been diagnosed with a mental condition during his period of active service.

3.  The applicant voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He acknowledged that he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits, to include benefits administered by the VA.  He also acknowledged he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

4.  The applicant’s voluntary 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 administratively correct and in conformance with applicable regulations.

5.  The applicant accepted NJP on four occasions.  His last period of AWOL began in Hawaii and he was apprehended in Ohio by civilian authorities for carrying a concealed weapon.  This shows his lack of intent to return to military control on his own.  Therefore, his service is considered unsatisfactory.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

7.  The ABCMR does not upgrade discharges based solely on the passage of time, nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The applicant was advised at the time he requested discharge that he may be ineligible for VA benefits based on the characterization of his discharge.  Granting veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

8.  The applicant was advised at the time he requested discharge that he may be deprived of his rights and benefits under both Federal and State laws.  His complaints concerning the Social Security Administration and the State welfare system are not within the ABCMR's jurisdiction.  Any questions or complaints the applicant may have concerning the benefits from these agencies should be addressed to the appropriate agency.

9.  In view of the foregoing, the evidence is insufficient for upgrading the applicant's discharge to a general discharge under honorable conditions or an honorable discharge.

10.  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 that 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)                                         AR20090018542



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ABCMR Record of Proceedings (cont)                                         AR20090018542



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