IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110005365 


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 at the time of going in an absent without leave (AWOL) status, he was suffering from depression, mental illness, and post-traumatic stress disorder (PTSD).  He had no control of his actions.  He is currently being treated for those conditions at the Department of Veterans Affairs.  Nevertheless, prior to going AWOL, he earned three honorable discharges and three Army Good Conduct Medals.  

3.  The applicant provides:

* 1992 separation packet and allied documents
* 1975 DD Form 214 (Report of Separation from Active Duty)
* 1975, 1979, and 1981 Honorable Discharge Certificates
* 1981 DD Form 4 (Enlistment/Reenlistment Document)

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 had prior enlisted service from 31 October 1972 through 22 January 1979, during which he attained the rank/grade of sergeant/E-5, the applicant's records show he reenlisted in the Regular Army on 23 January 1979 and held military occupational specialties 11C (Indirect Fire Infantryman) and 76Y (Unit Supply Specialist).  He also executed a reenlistment on 10 July 1981.

3.  He completed two periods of overseas service in Germany, from 24 May 1978 to 19 May 1980 and 21 August 1981 to 16 August 1983.  He was awarded the Army Good Conduct Medal (3rd Award), National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 6 November 1983, he departed his Fort Polk, LA unit in an AWOL status and on 6 December 1983, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in Charlotte, NC, on 4 September 1992 for the civilian charge of assault.  He returned to military control on 7 September 1992.

5.  On 15 September 1992, court-martial charges were preferred against the applicant for one specification of being AWOL from 6 November 1983 to 7 September 1992.

6.  On 15 September 1992, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he was making this request of his own free will and had not been coerced by any person whatsoever. He also understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that 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 law. 

8.  On 21 September 1992, the applicant's immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service. 

9.  Consistent with the chain of command's recommendations, on 28 September 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced the lowest enlisted grade.  The applicant was accordingly discharged on 20 October 1992.  

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service, in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 4 years, 10 months, and 27 days of creditable active military service with 3,229 days of lost time during this period.  He also had 6 years, 2 months, and 22 days of prior active service.

11.  There is no indication in his records that shows he suffered from depression, mental illness, and PTSD during his military service.  

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

13.  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 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 (emphasis added), 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 record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his extended period of AWOL.

2.  There is no evidence in his service records and he did not provide any substantiating evidence that shows he suffered from depression, mental illness, and PTSD during his military service or that he addressed such issues with medical authorities or that if he did, medical authorities diagnosed him with such conditions. 

3.  Based on his extensive AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general 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 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)                                         AR20110005365



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ABCMR Record of Proceedings (cont)                                         AR20110005365



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