IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100029888 


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 his discharge under other than honorable conditions be upgraded to honorable and restoration of his rank to specialist four (SPC)/E-4.

2.  He states he received this discharge based on being absent without leave (AWOL) which was due to his mental and physical problems.  He offers he was hospitalized twice at the William Beaumont Army Medical Center (WBAMC), Fort Bliss, TX, as a result of a nervous breakdown.  The nervous breakdown was caused by being separated from his German national wife and three young children.  He explains he was promised he would be sent to Fort Bliss from Germany in a temporary duty status and be returned to Germany after completion of advanced individual training if he reenlisted.  He states he reenlisted, but his permanent change of station to Germany did not occur.

3.  He further states he receives compensation from the Department of Veterans Affairs (VA) and was recommended for 50-percent disability due to post-traumatic stress disorder.  Additionally, he offers that while he was on active duty he suffered a right lung injury which resulted in having a chest tube inserted in his chest cavity.  He states he fell off a Pershing II Missile Launcher and suffered a back compression fracture and a right hand and wrist injury.  He also states he suffers from a right lung injury, lower neck injury, and mental illness which all occurred while serving on active duty.

4.  He provides the following:

* self-authored statement
* Permanent Orders 34-8, dated 3 March 1988
* Permanent Orders 20-4, dated 13 April 1988
* Permanent Orders 100-04, dated 29 December 1988
* Permanent Orders 6-2, dated 24 January 1989
* DA Form 1695 (Oath of Extension of Enlistment), dated 28 September 1989
* Orders 78-44, dated 23 April 1990
* Orders 87-34, dated 4 May 1990
* Orders 198-130, dated 12 October 1990
* Orders 198-111, dated 12 October 1990
* Permanent Orders 26-8, dated 7 February 1991
* Permanent Orders 38-13, dated 26 February 1991
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 May 1991
* DA Form 1059 (Service School Academic Evaluation Report), for the period 5 November 1991-6 December 1991
* memorandum, subject:  Request for Discharge for the Good of the Service, dated 28 July 1992
* DD Form 458 (Charge Sheet), dated 28 July 1992
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 August 1992
* VA Administrative Decision, dated 27 August 2002
* DA Form 2-1 (Personnel Qualification Record)
* certificates of achievement
* certificates of training
* health records
* review of medical records
* memorandum, subject:  Army Superior Unit Award, undated
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 18 May 2010

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 5 March 1985 for 3 years.  On 1 August 1986, he was promoted to SPC/E-4.  On 15 April 1987, he extended his enlistment for an additional 19 months to meet the service remaining requirement for a foreign service tour extension.  On 11 May 1990, he reenlisted in accordance with the needs of the Army.

3.  On 16 January 1991, he was seen at the Community Mental Health Service.

4.  On 16 April 1991, he was seen at WBAMC for reactive and chronic depression.  The DA Form 2173 stated the applicant was admitted for depression and that he stated he had numerous visits to mental health and the command.  The commander signed the form and stated the applicant was suffering from excessive stress due to personal and professional problems.

5.  He provided certificates and/or orders that show the following:

* selection as Honor Soldier, 14 March 1985 to 9 May 1985
* successful completion of German Headstart, 9 June 1986 to 13 June 1986
* meritorious achievement as a member of the Augmentation Force, 16 January 1987 to 13 February 1987
* successful completion of equipment training on operator and maintenance repair procedures, 19 February 1987
* award of the Army Good Conduct Medal (AGCM) (1st Award), 5 March 1988 to 4 March 1988
* award of the Army Achievement Medal (AAM), 7 March 1988 to 14 March 1988
* meritorious achievement as custodial agent/missile maintenance specialist, 10 June 1988 to 22 July 1988
* award of the Driver and Mechanic Badge, 29 November 1987 to 30 November 1988
* award of the AAM (3rd Award), 3 December 1988 to 8 December 1988
* successful completion of the Primary Leadership Development Course (PLDC), 5 November 1991 to 6 December 1991
* award of the AGCM (2nd Award), 5 March 1988 to 4 March 1991

6.  On 28 July 1992, charges were preferred against him for being AWOL from 6 April 1992 to 14 May 1992.

7.  On 28 July 1992, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, he was afforded the opportunity to speak with counsel, he understood he may be furnished a discharge under other than honorable conditions, he may be deprived of many or all Army benefits, he may be ineligible for many or all VA benefits, and he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his behalf.

9.  The separation authority's approval of his discharge proceedings is not contained in his available record.  There also is no mental health evaluation or a separation medical examination.  Additionally, his record is void of any evidence showing he was diagnosed with any type of medical condition at the time of his separation.

10.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged for the good of the service in lieu of a trial by court-martial on 28 August 1992 in the rank of Private, E-1 (with an effective date of pay grade as 12 August 1992) under the provisions of Army Regulation 635-200, chapter 10.  It shows his service was characterized as under other than honorable conditions. It further shows he completed 7 years, 4 months, and 16 days of total active service with 38 days listed as lost time.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after court-martial charges are preferred.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally directed for an individual who is discharged for the good of the service.

13.  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.

14.  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.  

15. Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

16.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his mental state due to separation from his spouse and children led to indiscipline was considered.  He provides a document that shows he was seen at the mental health clinic on 16 January 1991 and admitted for depression on 16 April 1991.  However, the evidence of record shows these visits to the mental health clinic occurred over a year prior to being charged for AWOL and subsequently discharged.

2.  Further, he assumes his compensation from the VA provides credence to his claim that his discharge should be upgraded because of his mental and physical problems.  However, there is no mental health or separation medical examination in the available file and he did not provide one.  There is also no evidence and he did not provide any to show he was physically unfit to perform his duties at the time of his separation.  In fact, based on his completion of PLDC and his award of the AGCM (2nd Award), the evidence suggests he continued to Soldier on even after his bout of depression and/or stress.  Therefore, his contention that his mental state led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  The evidence of record shows the applicant's request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was voluntary, administratively correct, and in compliance with applicable regulations.  Based on his approved separation with a discharge under other than honorable conditions, he was appropriately reduced to Private, E-1.

4.  His record of service included 37 days of AWOL.  Based on this record of indiscipline, 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 an honorable or a general discharge.  Likewise, he is also not entitled to restoration of his rank to SPC/E-4.

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)                                         AR20100029888



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ABCMR Record of Proceedings (cont)                                         AR20100029888



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