IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110003531 


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 discharge to a general discharge.

2.  The applicant states that during the physical at the Military Entrance Processing Station (MEPS), Boston, MA, on 29 March 1982, it was found and documented that he had psychiatric problems but he was still accepted into the Army.  These problems were agitated during his service and led to his discharge.

3.  The applicant provides a Standard Form 88 (Report of Medical Examination).

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.  On 29 March 1982, in conjunction with his enlistment in the Army, the applicant filled out Standard Form 93 (Report of Medical History) at the MEPS, Boston, MA, wherein he stated and it was noted that he "tried marijuana twice at age 17, none since."

3.  On the same date, the examining physician checked block 42 (Psychiatric) of Standard Form 88 and annotated "[Block] 42 - tried marijuana twice at age 17, none since."

4.  The applicant's records show he enlisted in the Regular Army on 5 October 1982 and he held military occupational specialty 11B (Infantryman).  He was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Riffle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.

5.  On 2 February 1983, he was assigned to the 1st Battalion, 5th Cavalry, Fort Hood, TX.  

6.  On 1 November 1983, he was reported absent without leave (AWOL) from his assigned unit and on 1 December 1983, he was dropped from the rolls (DFR) of his organization.

7.  On 15 February 1985, he was apprehended by civilian authorities and he was returned to military control on 22 February 1985.

8.  On 27 February 1985, court-martial charges were preferred against him for one specification of being AWOL from 1 November 1983 to 15 February 1985.

9.  On 27 February 1985, 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, 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 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.

10.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

11.  On 7 March 1985, his immediate commander recommended approval of his request for a discharge with an Under Other Than Honorable Conditions Discharge Certificate.  His commander stated he interviewed the applicant and the applicant had stated he joined the Army because he was unemployed, he found the Army to be more demanding than he expected, he went AWOL because of his inability to adjust to military service, and he desired to be discharged.

12.  On 14 March 1985, his senior commander recommended approval of his request for a discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

13.  On 22 March 1985, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

14.  On 4 April 1985, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of "for the good of the service - in lieu of court-martial" with an under other than honorable conditions characterization of service.  He completed 1 year, 2 months, and 16 days of creditable active service with 473 days of lost time.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  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 included 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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.

18.  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 evidence of record shows the applicant 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 a discharge 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.

2.  There is no evidence in the applicant's records, and he did not provide any evidence, to show that he was diagnosed with or suffered from a psychiatric illness/issue prior to or while serving on active duty that led to his discharge. 

3.  His record of service shows he was AWOL for 473 days (1 year, 3 months, and 15 days) at the time he was apprehended and returned to military control.  Based on this record of misconduct, 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.

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)                                         AR20110003531





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ABCMR Record of Proceedings (cont)                                         AR20110003531



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