IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100018016 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states he believes he was suffering from a brain tumor at the time of discharge and that it affected his behavior and ability to make decisions.  He had a seizure less than 2 weeks after he was discharged, within a few days he had a second seizure, and he was admitted to the hospital, and had a benign tumor removed from the temporal region of his brain.  He further states that he started suffering from headaches and incontinence during basic training and he received some medication while in training.  It was about this time that he was confronted with a few incidents of racial tension that caused him to lose his temper.  His parents were going through a divorce and his girlfriend, who had his baby prior to entering the service, sent him a "dear john" letter.  To escape all of these issues, he went absent without leave (AWOL).  Eventually, he realized he needed to face the consequences of his decisions and returned to military duty.  When given his options, he unwisely chose to be discharged.

3.  The applicant provides letters of support from his brother and mother.

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:

	a.  he enlisted in the Regular Army on 28 December 1979;

	b.  he was awarded military occupational specialty 63B (Power Generation and Wheeled Vehicle Mechanic);

	c.  he accepted nonjudicial punishment on 16 July 1980 for assaulting another Soldier with a syringe of undiluted sulfuric acid; and

	d.  on 27 March 1981, he was charged with being AWOL from on or about 
2 September 1980 to 23 March 1981.

3.  On 7 April 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

4.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or 


dishonorable discharge.  He further acknowledged he understood that if his discharge request 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 9 April 1981, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).

7.  On 20 April 1981, the applicant was discharged accordingly.  He had completed 9 months of creditable active military service and accrued a total of 202 days of time lost due to being AWOL.

8.  On 9 September 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC is normally considered appropriate.

10.  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.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  The two letters of support essentially state that the applicant's behavior had changed significantly after his enlistment in the U.S. Army.  The authors contend that his change in behavior was due to a brain tumor that was subsequently removed after his discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded to general because he believes his medical condition caused the misbehavior that resulted in his discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ; that he could receive a UOTHC discharge which would deprive him of many or all benefits as a veteran; and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The available evidence is insufficient to prove that his misbehavior was the direct result of a brain tumor.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100018016



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ABCMR Record of Proceedings (cont)                                         AR20100018016



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