IN THE CASE OF:	  

		BOARD DATE:	 21 April 2011 

		DOCKET NUMBER:  AR20100026296 


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

2.  The applicant states he suffered a traumatic incident 3 months prior to his discharge and had no prior behavioral incidents before the air show crash broke the stability of his mind.  He further states these facts are documented and he should not be punished for helping save lives.  Germany considers him a hero and he wants the Army to do the same.  He has been awarded 30-percent service-connected disability for post-traumatic stress disorder (PTSD) for his participation in the Ramstein air show crash in August 1988.  He attempted to get help by being admitted to the Landstuhl Air Force Base mental hospital for having nightmares of seeing friends and others burned and crushed.  He lost his memory for a short time after the crash.  He did not seek help from the Department of Veterans Affairs (VA) and he did not attempt to get his discharge changed for fear he would be treated the same as before.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 16 August 2010
* VA Rating Decision
* University of Missouri-Kansas City transcript
* three statements of support


* marriage certificate
* law school admission request

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.  Having prior U.S. Army Reserve service, the applicant's records show he enlisted in the Regular Army on 1 May 1986 and he held military occupational specialty 76Y (Unit Supply Specialist). 

3.  He was assigned to the 593rd Service and Support Company, Kaiserslautern, Germany.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  In October 1988, court-martial charges were preferred against the applicant for one specification of being absent without leave (AWOL) from his assigned unit, one specification of failing to repair, and one specification of failing to repay just debts.

5.  He consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), 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 requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  In his request for discharge, he acknowledged he understood that by submitting the request for a discharge he was admitting he was guilty of the charges against him and if his discharge request were approved, he could be discharged under conditions other than honorable.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.  He further stated he had no desire for rehabilitation or to perform further military service.

7.  His chain of command recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

8.  On 24 October 1988, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 12 December 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 7 months, and 12 days of total active service.

9.  On 14 January 1999, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He stated, in part, his fiancée had a miscarriage and he made some bad decisions by being AWOL to see her in the hospital.  On 17 March 1999, the ADRB determined he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge.

10.  The applicant provides a VA Rating Decision, dated 1 March 2010, wherein he is granted 30-percent disability for service-connected PTSD.

11.  The applicant also provides a statement of support, dated 16 August 2010, wherein Mr. L____ S____, states the applicant witnessed a horrible event at the Ramstein air show in 1988 and he knows all about it because he was in the Air Force at the time.

12.  In a second statement of support, dated 20 October 2010, the applicant's spouse states, in part, the applicant told her he has vivid memories of the Ramstein air show crash and he is haunted by the smell of burning flesh.  The applicant often wakes up at night sweating because of bad nightmares from this event.  He told her that after the crash he stayed with his girlfriend and when the military police came to her house he jumped from a low window and ran away.  He did not know it at the time, but he was suffering from memory loss and PTSD.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

14.  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.

15.  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's contention that his discharge under other than honorable conditions should be upgraded to an honorable or a general discharge was carefully considered and found to be without merit.

2.  He claims he suffered a traumatic incident at an air show which caused PTSD just 3 months before he was discharged.  However, there is no evidence in the available records and he did not provide any conclusive evidence to support this argument.  He did not raise this argument when he applied to the ADRB.  Additionally, there is no evidence in his records and he provided no evidence to show his AWOL was caused by his alleged PTSD.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested discharge from the Army to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Based on his record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.

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)                                         AR20100026296



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ABCMR Record of Proceedings (cont)                                         AR20100026296



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