IN THE CASE OF:	

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021748 


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 a general or an honorable discharge.

2.  The applicant states that during the time he was absent without leave (AWOL) he was under severe psychological distress due to personal family issues and deaths in the family.  Due to his condition at the time, he was unable to function normally as a Soldier.  He was also under the care of psychiatrist at the time and does not believe that was taken into consideration during his court-martial.  He tried to upgrade his discharge before through the Disabled American Veterans (DAV), but he has been unable to get them to follow through.  He concludes he has made many life changes over the years and now takes full responsibility for his past actions, but believes he received punishment that did not fit the offense.

3.  Although the applicant indicates he provides a statement from the DAV, memoranda from his command, and copies of death certificates, none of these documents accompanied his application.

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 on 22 May 1979.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  The applicant's record contains two DA Forms 4187 (Personnel Action) showing he was AWOL from his unit:

* from 1 February 1980 until 15 February 1980
* from  8 January 1981 until 30 January 1981

4.  The applicant's record also shows he was tried and convicted by a summary court-martial on 20 February 1981 for being AWOL from 8 January 1981 until 30 January 1981.

5.  The applicant's record contains three DA Forms 4187 showing:

* his unit reported him AWOL on 2 June 1981
* he was dropped from the unit's rolls for desertion on 2 July 1981
* he returned to military control on 18 August 1981

6.  The applicant's record contains a DA Form 3822-R (Report of Mental Status Evaluation) showing he underwent a mental status evaluation on 26 October 1981.  The evaluation determined he:

* behaved normally
* was fully alert
* was fully oriented
* had a level mood
* had a clear thinking process
* had normal thought content
* had a good memory
* displayed no significant mental illness
* was mentally responsible
* was able to distinguish right from wrong
* was able to adhere to the right
* had the mental capacity to understand and participate in board proceedings
* met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3

7.  The applicant's record contains a Standard Form (SF) 88 (Report of Medical Examination), dated 16 November 1981, showing he underwent a physical examination in conjunction with his separation from the Army under the provisions of Army Regulation 635-200, chapter 10.  Item 42 (Psychiatric (Specify any personality deviation)) of this form shows the examining physician determined he had no unusual psychiatric conditions.  Item 77 (Examinee) of this form shows he was qualified for separation.

8.  The applicant's record contains an SF 93 (Report of Medical History), dated 16 November 1981, he rendered in conjunction with his separation physical examination.  In Item 11 (Have you ever had or have you now) he indicated he had experienced:

* cramps in his legs
* venereal disease
* foot trouble
* depression or excessive worry
* nervous trouble

9.  In Item 16 (Have you ever been treated for a mental condition?) of the applicant's SF 93, he indicated he had received psychiatric treatment in Texarkana, TX on 21 July 1981 due to serious family problems he was coping with which was having an adverse effect on his military duty performance.  The physician noted he had experienced intermittent depression for the past year and a half.

10.  Headquarters, 13th Corps Support Command, Fort Hood, TX, Orders 238-2, dated 1 December 1981, reduced the applicant in rank/pay from private (PV2)/
E-2 to private (PV1)/E-1 effective 4 November 1981.

11.  Headquarters, 13th Corps Support Command, Fort Hood, Orders 241-107, dated 4 December 1981, as amended by Orders 243-80, dated 8 December 1981 from the same headquarters, reassigned the applicant to the Adjutant General Transfer Point, Fort Hood for separation processing and discharged him effective 14 December 1981.

12.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  The DD Form 214 issued to the applicant at the time shows he was separated under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  The narrative reason for his separation was "Administrative Discharge - conduct triable by court-martial."  At the time of his separation he had completed 2 years, 2 months, and 11 days of creditable active military service.

13.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of veteran's benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

15.  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.

16.  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 record should be corrected by upgrading his under other than honorable conditions discharge to a general or an honorable discharge was carefully considered.
2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

3.  The fact that the applicant experienced some depression associated with family problems is duly noted and was no doubt taken into consideration when the separation authority reviewed his case prior to determining the characterization of his service.  Additionally, his record is void of any evidence and he has not provided any evidence his condition was severe enough to justify his pattern of misconduct or the fact that he committed a serious offense which rendered him triable by a court-martial.

4.  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)                                         AR20090021748



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ABCMR Record of Proceedings (cont)                                         AR20090021748



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