BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110018624 


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 that he was on leave and he lost his left hand in an accident.  He was in a state of deep depression and stress that he neglected to inform the Army.  As a result of this neglect, he was reported absent without leave (AWOL).  He did not mean to mislead the Army but he was not in the right frame of mind to handle any of his affairs.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Three letters of support/character reference

 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 records show he enlisted in the Regular Army on 29 March 1974 and he held military occupational specialty (MOS) 05E (Voice Radio Operator).  

3.  On 19 June 1974, while in training, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting another Soldier.

4.  Upon completion of MOS training, he was placed on assignment instructions to Germany; however, he failed to report.  

5.  On 14 August 1974, he was reported in an AWOL status and on 13 September 1974, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in Dallas, TX, on local charges wherein an inquiry reflected his deserter status.  He was returned to military authorities at Fort Hood, TX, on 24 June 1976.

6.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his records contain the following documents:

	a.  A copy of Order 69-250, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, on 7 September 1976 ordering his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, effective 8 September 1976;

	b.  DA Form 2496 (Disposition Form), dated 25 August 1976, wherein he acknowledged that the reason for his separation was a discharge under the provisions of chapter 10 of Army Regulation 635-200, and 

	c.  A duly-constituted DD Form 214 that shows he was discharged on 8 September 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service.  This form also shows he completed 3 months and 22 days of creditable active service and he had 680 days of lost time.

7.  There is no indication in his records that shows he suffered an injury or an illness that may have led to the loss of a limb.


8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

9.  He submitted three character reference letters and/or letters of support from his former spouse, his current spouse, and his sister.  They all comment on an injury that led to the loss of his arm (according to one statement) or his hand (according to another).  The authors also comment on his mental status and state of depression at the time.  

10.  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.

11.  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.

12.  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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 8 September 1976 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable conditions character of service. 
3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, 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 evidence that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

4.  The applicant's circumstances regarding the alleged injury and/or depression -albeit unsubstantiated - at the time are noted.  However, they are not sufficiently mitigating in granting him the requested relief.  There would have been many other avenues he could have addressed any medical or mental issues.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20110018624





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ABCMR Record of Proceedings (cont)                                         AR20110018624



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