IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100008350 


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 (UOTHC) discharge.

2.  He states his discharge should be upgraded because he was having panic attacks and suffering from depression at the time, but he did not know what was wrong with him.

3.  He states he was providing copies of his mental health records of 4 years ago; however, no additional documentation was received 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's military records show he enlisted in the Regular Army on 8 September 1976 for 4 years.  He served in Korea from 16 February 1977 through 15 February 1978.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 27 October 1979.

3.  On 3 February 1981, he was reported absent without leave (AWOL) and he was dropped from the rolls (DFR) of his organization on 4 March 1981.  He subsequently returned to military control on 9 April 1981.

4.  On 20 April 1981, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, Fort Ord, CA.  He was charged with one specification of being AWOL from 3 February to 9 April 1981.

5.  On 20 April 1981, after consulting with 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 court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged UOTHC and furnished a UOTHC Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 31 July 1981, his unit commander recommended approval of his request for discharge with the issuance of a UOTHC Discharge Certificate.  The unit commander stated the applicant went AWOL because he disliked the military and desired a discharge because of his dislike for military life.  The unit commander also stated that the applicant expressed he would go AWOL again if returned to duty.

7.  On 3 and 5 August 1981, respectively, the intermediate commanders recommended approval of the applicant's discharge with issuance of a UOTHC Discharge Certificate.

8.  On 6 August 1981, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of a UOTHC Discharge Certificate and the applicant's reduction to the lowest enlisted grade.

9.  He was discharged in pay grade E-1 on 9 October 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of 

trial by court-martial with service characterized as UOTHC.  He was credited with completing 4 years, 11 months, and 26 days of net active service and 66 days of lost time.

10.  There is no indication he requested assistance through his chain of command for any personal or medical problems which prevented him from completing his period of service.

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

12.  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 UOTHC is normally considered appropriate.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention that his discharge should be upgraded because he was having panic attacks and suffering from depression has been considered; however, it does not support a change to his UOTHC discharge.  The evidence shows he departed AWOL, he was dropped from the rolls, and he subsequently returned to military control.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and he expressed to his unit commander his desire to be discharged from the Army.  He also acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  His unit commander stated the applicant went AWOL because he disliked the military, desired a discharge, and if returned to duty he would go AWOL again.

3.  He has submitted no evidence to show he was denied any assistance from his chain of command with any medical or personal problems he was having during his period of service.  Even if he was enduring any problems, there were many alternative remedies he could have used, but he chose not to do so.  There is an absence of sufficient documentation to support his contention.  Therefore, in the absence of evidence to the contrary, government regularity in the discharge process is presumed.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.

5.  In view of the foregoing, there is no 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)                                         AR20100008350



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ABCMR Record of Proceedings (cont)                                         AR20100008350


   
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