IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110002613 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that he was under extreme stress that was not treated while he was in the military, now he needs medical care.

3.  He provides:

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three personal references

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 17 January 1980.

3.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice for:

* being absent without leave (AWOL) from 7 April to 9 April 1980 and 4 August to 14 August 1980
* unlawfully striking a Soldier on the legs with his feet on 11 July 1980
* failing to obey a lawful order on 12 July 1980

4.  His record contains a DD Form 458 (Charge Sheet) that shows charges were preferred against him for being AWOL from 14 October 1980 to13 January 1981.

5.  On 14 January 1981, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  The applicant acknowledged he:

	a.  was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  did not desire further rehabilitation or desire to continue in the military;

	d.  understood that if his request was accepted he could be issued a UOTHC discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration;

	e.  understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and
	g.  was advised he could submit any statements he desired to accompany his request for discharge; however, he elected not to do so.

6.  On the same date, the applicant underwent a mental health evaluation in which the attending physician stated he had no significant mental illness, he was able to distinguish right and wrong, and had the mental capacity to understand and participate in board proceedings.

7.  On the same date, his commander and immediate commander recommended approval with the issuance of a UOTHC discharge.

8.  On 17 March 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with a UOTHC discharge.  On 27 March 1981, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 1 year, 3 months, and 11 days of total active service.  He had 91 days of lost time.

9.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

10.  He submitted three personal references, dated 9 December 2010,
12 January 2011, and the third was undated, that noted he is family orientated, hard working, and a church-going man. 

11.  Army Regulation 635-200 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 UOTHC discharge is normally considered appropriate.

12.  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.


13.  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.  There is no evidence nor did he submit any evidence that shows he reported to his chain of command that he was suffering from stress or that he was treated for stress during his military career.  Nor is there any evidence that shows he reported that he was suffering from the effects of stress during his mental health examination.  

2.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

4.  His service record shows he received three nonjudicial punishments for misconduct and he had a total of 91 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general discharge.

5.  The character references the applicant provided documenting his good post-service conduct are noteworthy.  However, they are not sufficiently mitigating to support a changing the characterization of his service.

6.  The available evidence is insufficient 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)                                         AR20110002613



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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