IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022211 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states there are mitigating factors he discovered subsequent to his discharge that explain his erratic and uncharacteristic behavior in the Army.  After several years of continued confused, abnormal, and deteriorated mental and emotional health, he was diagnosed with bipolar disorder and a form of attention deficit disorder.  He adds he was treated, was prescribed appropriate medication, and has since led a relatively normal and productive life.

3.  The applicant provides no additional evidence in support of 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 and entered active duty in the Regular Army for a period of 3 years on 30 December 1980.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 13F (Fire Support Specialist).

3.  The applicant served overseas in Germany from 20 April 1981 through 14 October 1982.

4.  He was promoted to specialist four (SP4)/pay grade E-4 on 1 February 1983.

5.  On 10 June 1983, the applicant's company commander preferred court-martial charges against him for violation of Article 86, Uniform Code of Military Justice (UCMJ), for absenting himself from his organization from 6 May to 7 June 1983.

6.  On an unspecified date, the applicant consulted with legal counsel and 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he was guilty of the charge against him or of a lesser-included offense contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was advised that he could submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

7.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

8.  On 24 June 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to private/E-1.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 July 1983 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He completed 2 years, 5 months, and 7 days of net active service during this period.

10.  A review of the applicant's military personnel records failed to reveal he was found unfit for military service based on a mental or physical disorder.

11.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of absence without leave (AWOL) in excess of 30 days.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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.  Chapter 3, paragraph 3-7b, provides that a general discharge under honorable conditions 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 discharge under other than honorable conditions should be upgraded to a general discharge under honorable conditions because there are mitigating factors that he discovered subsequent to his discharge that explain his erratic and uncharacteristic behavior in the Army.

2.  The evidence of record shows the applicant satisfactorily completed basic combat and advanced individual training, he completed nearly 18 months of overseas service in Germany, and he was promoted to SP4/E-4 upon attaining 25 months of active service.  Thus, the evidence of record does not support the applicant's contention that he displayed "erratic and uncharacteristic behavior" during the more than 28 months of active service prior to going AWOL.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence of record shows the applicant was AWOL for a period of 31 days and he elected not to offer an explanation or reason(s) for being AWOL.  In addition, the applicant failed to complete his 3-year enlistment obligation.  Thus, the evidence of record shows the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In view of all of the foregoing, there is no basis for granting the 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 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)                                         AR20100022211



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ABCMR Record of Proceedings (cont)                                         AR20100022211



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