BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100009054 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, he does not believe his 10 years of good service with multiple awards were taken into consideration when he was issued the under other than honorable conditions discharge.  At the time of discharge, he received no counsel and he was not given a chance to provide an explanation for his period of absence without leave (AWOL).  He applied for Veterans Administration (VA) benefits and he was denied because of his characterization of service.    

3.  The applicant also states that he was troubled with racial problems within his unit at Fort Hood, TX.  He took notes, wrote down names, and addressed the issue with his commander, but no action was taken.  Things continued to deteriorate until he failed an inspection.  He subsequently sought help through mental health and he was interviewed by a doctor who gave him poor advice and returned him to duty.  In December 1987, he went on holiday leave and did not return to his unit.  No one called his home or checked on him, so he did not return.  However, he ultimately turned himself in at Fort Dix, NJ.  

4.  The applicant provides a copy of a VA Rating Decision, dated 2 February 2009, and a Chronological Record of Medical Care, that contains two dates 
28 October and 10 November 1987.


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 (RA) on 27 January 1966 and held military occupational specialty (MOS) 67Q (Single Engine Helicopter Mechanic).  He was honorably discharged do 26 July 1967 for the purpose of immediate reenlistment.  

3.  He executed a 3-year reenlistment on 27 July 1967 and subsequently served in Vietnam from September 1967 to September 1968.  He was again honorably released from active duty on 6 April 1970.

4.  After a break in service, he enlisted in the RA on 12 January 1975 and was assigned to the 2nd Battalion, 5th Air Defense Artillery (ADA), Fort Hood.  He was honorably discharged on 17 March 1977 for the purpose of immediate reenlistment.  He reenlisted on 18 March 1977 and subsequently served in Germany from November 1978 to January 1982.  He was honorably discharged on 17 March 1982.  

5.  He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar, Good Conduct Medal (4th Award), Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Army Service Ribbon, Parachutist Badge, Overseas Service Ribbon, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.

6.  On 24 February 1987, after a break in service, he enlisted in the Delayed Entry Program (DEP).  On 2 March 1987, he was discharged from the DEP and enlisted in the RA on 3 March 1987 for a period of 4 years in MOS 16P (Chaparral Crewmember).  He was assigned to the 1st Battalion, 68th ADA, Fort Hood.

7.  On 4 January 1988, he departed his unit in an AWOL status, he was dropped from Army rolls on 3 February 1988, and he returned to military control at Fort Dix, NJ, on 24 October 1988.

8.  On 27 October 1988, court-martial charges were preferred against him for one specification of being AWOL from 4 January 1988 to 24 October 1988.

9.  On the same date, during an interview, he was asked why he went AWOL.  He responded by stating that his chain of command failed to correct problems that existed that caused him and his wife great stress and a hardship.

10.  On 27 October 1988, he consulted with legal counsel (emphasis added) and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of 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 voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service - in lieu of trial by court-martial.

11.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He acknowledged he had been advised of the implications that were attached to this action.  He also acknowledged he understood that by requesting a 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 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Finally, he elected not to submit a statement on his own behalf (emphasis added). 

12.  On 10 November 1988, his immediate commander recommended approval of his request with the issuance of an under other than honorable conditions discharge.  

13.  On 25 January 1989, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200.  The separation authority also directed that he be issued an under other than honorable conditions discharge and reduced to the lowest enlisted grade.  On 23 February 1989, the applicant was discharged accordingly.  

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he had completed 1 year, 1 month, and 27 days of creditable active military service during the period under review and he had 294 days of lost time during this period of enlistment.  He also had 10 years, 6 months, and       16 days of prior active service.

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

16.  He submitted the following documents:

	a.  A copy of his VA Rating Decision, dated 2 February 2009, that shows he was advised that he and his dependents were ineligible for VA benefits for the period of service from 3 March 1987 through 23 February 1989. 

	b.  A copy of a Chronological Record of Medical Care shows the applicant visited the department of psychiatry on 28 October 1987.  He was provided treatment and returned to his unit.  This form also shows a clinical supervisor reviewed the disposition on 10 November 1987, concurred, and closed his case. 

17.  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.

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 his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions.  

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.  Contrary to his contention that he received no counsel and was not afforded the opportunity to provide an explanation for going AWOL, the evidence of record shows he consulted with counsel and he was advised of the implications that were attached to his action.  Furthermore, during an interview, he was asked why he went AWOL and he provided a response.  He was further afforded an opportunity to submit a statement on his own behalf in connection with his discharge process but he elected not to do so. 

4.  The applicant's prior periods of active service were considered and he received the appropriate characterization for each period of prior service.  Additionally, his service in Vietnam and Germany and multiple awards were also considered.  However, they are not sufficiently mitigating to warrant an upgrade of his last period of service.  

5.  The Chronological Record of Medical Care that he provided shows he was assessed, diagnosed, treated, and returned to duty.  Furthermore, a clinical supervisor reviewed his case and concurred with the diagnosis and disposition.  There is no indication he had a mental condition that caused him to go AWOL.

6.  Based on his record of indiscipline his last period of service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions. 






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)                                         AR20100009054



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)