IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029877


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, that:

* at the time of his discharge he was suffering from post-traumatic stress disorder (PTSD) that was incurred during Operation Desert Shield/Storm
* he turned to alcohol to relieve the stress he was feeling
* his records reveal no problems prior to Operation Desert Shield/Storm
* he realizes his actions were not acceptable, but he is asking that he be given credit for his performance prior to the actions that led to his discharge
* twenty years later, he is still dealing with the effects of his actions, as well as the effects of PTSD along with other medical problems resulting from Operation Desert Shield/Storm
* his current discharge is preventing him from receiving the honor and care he needs
* he does not feel one incident warranted the discharge he received
* he has paid dearly for his actions and asks that the Board grant him relief for himself and his children
* he made a mistake almost 20 years ago and he only wanted out of the Army, regardless of the repercussions
* now he wants the chance to show that he was not in his right mind when he committed the act(s) that resulted in his discharge

3.  The applicant provides no additional evidence.

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 record shows he enlisted in the Regular Army on
6 February 1990.  He completed training and he was awarded military occupational specialty 19D (Cavalry Scout).  

3.  Records show he served in Southwest Asia, in support of Operations Desert Shield/Storm, from 2 October 1990 through 18 March 1991.

4.  The applicant's discharge packet is not available for review.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 29 September 1992, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations), in lieu of a court-martial, and issued an under other than honorable conditions discharge.  This form confirms he completed 2 years, 7 months, and 24 days of net active service during this period of enlistment.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

5.  There is no indication he applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

6.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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.

7.  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.

8.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 29 September 1992, under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.  Therefore, he is not entitled to a general 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 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100029877



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