IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000492 


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 an honorable discharge. 

2.  The applicant states that at the time of his discharge he did not know he was clinically depressed and that he suffered from anxiety.  He states he did not cope well after an airborne accident and an explosion that killed 28 fellow Soldiers.  He states he now understands that he was, and currently is, clinically depressed and receives psychiatric treatment for his depression.  At the time of his service, he was afraid to talk to anyone about how he felt inside.  He states his commander made him feel like an outcast and that his personal safety was in danger from his peers if he didn't continue to perform without acting like a child.  The applicant states he suffered from terrifying thoughts, dreams, and expectations resulting in feeling as if he was going to die either from doing his job as an airborne infantryman or by a mental breakdown.  He asks for understanding and a chance to make right what he did wrong.

3.  The applicant provides no supporting evidence with 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 enlisted in the Regular Army on 1 December 1992 for a period of 3 years and 17 weeks.  He completed his initial entry training and parachutist training he was awarded military occupational specialty 11B1P (parachutist-qualified Infantryman).  He was assigned t Fort Bragg, NC on or about 6 May 1993.

3.  The applicant's service personnel records contain documentation showing he went absent without leave (AWOL) from 23 August to 16 September 1993.  However, there is no record of a court-martial conviction or nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for this offense filed in his records.

4.  On 23 March 1994, a mid-air collision and subsequent ground collision at Pope Air Force Base (co-located with Fort Bragg, kill 24 members of the 82d Airborne Division.

5.  On 28 March 1994, the applicant was again reported AWOL.  He surrendered to military authorities on 9 May 1994.  On an unknown date, he signed a memorandum admitting he was AWOL for this period which was witnessed and signed by a military lawyer.

6.  On 13 May 1994, court-martial charges were preferred against the applicant for being AWOL during the period 28 March to 9 May 1994.

7.  On 13 May 1994, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of the offense for which he was charged.  He further acknowledged that he was afforded the opportunity to consult with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many 
or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9.  The applicant's immediate and intermediate commanders recommended approval of his request for discharge and recommended issuance of an under other than honorable conditions discharge.

10.  On 21 June 1994, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be given an under other than honorable conditions discharge.

11.  Accordingly, on 13 July 1994 the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 5 months, and 8 days of creditable active service with two periods of AWOL from 23 August to 16 September 1993 and from 28 March to 8 May 1994.

12.  There is no record or evidence to show the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

13.  References:

   a.  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.

   b.  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.

   c.  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 at the time of his misconduct and discharge he was clinically depressed and suffered from anxiety associated with a military airborne accident and an explosion that killed 28 fellow Soldiers.  After receiving a clinical diagnosis of depression and medical treatment, he now knows the reason for his misconduct and requests compassionate consideration of his request.

2.  The applicant's record is void of documentation showing he was involved in an airborne accident, although it is reasonable to presume that he at least witnessed the March 1994 accident at Pope Air Force Base.

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial for an extended period of AWOL which is punishable under the UCMJ.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  The quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  Furthermore, the evidence of record shows the applicant had a period of AWOL in August/September 1993, well before the March 1994 accident

5.  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.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is insufficient basis for granting the applicant's requested relief.

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)                                         AR20100000492



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)