IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110022711 


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 that his discharge under other than honorable conditions be upgraded.

2.  The applicant states prior to his discharge he was having suicidal thoughts and had to spend two nights in a mental ward.  He was young at the time and very depressed after returning from Haiti but did not seek further treatment.  In addition, he was promised that his son would be able to come live with him since he had custody; however, nothing that was promised to him materialized.  He felt betrayed and he isolated himself.  No one was listening to him or understanding him so when he received deployment orders to Bosnia he just lost control.

3.  The applicant provides no additional evidence.

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 was born on 12 August 1972.  He enlisted in the Regular Army on 27 January 1993 at the age of 20 years, 6 months, and 16 days.  He completed initial entry training and was awarded military occupational specialty of 63B (Light Wheeled Vehicle Mechanic).  The highest rank/pay grade he attained while serving on active duty was private first class (PFC/E-3).

3.  A review of his military personnel record reveals:

	a.  On 31 July 1995, he departed his unit, Company B, 1st Battalion, 62d Air Defense Artillery, Schofield Barracks, HI, in an absent without leave (AWOL) status.

	b.  On 29 August 1995, he was dropped from the rolls of his unit.

	c.  On 5 September 1995, he surrendered to military authorities and was returned to military control at the Naval Support Activity, New Orleans, LA.

4.  A DD Form 458 (Charge Sheet), dated 8 September 1995, shows he was charged with one specification of being absent from his unit without leave.

5.  On 11 September 1995, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  His chain of command recommended approval of his request and that he be discharged under other than honorable conditions.

7.  On 6 November 1995, the separation authority approved his request and directed that he be given an under other than honorable conditions discharge.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 December 1995 under the provisions of chapter 
10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had completed 2 years, 10 months, and 5 days of active service.  Item 18 (Remarks) shows he was separated from service on temporary records and Soldier's affidavit.

9.  His medical records are not available for review and there are no documents which show he suffered from depression or was hospitalized in a civilian or military facility prior to his discharge.

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

11.  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 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge under other than honorable conditions be upgraded.

2.  His record shows he was 20 years of age at the time of his enlistment and 22 years of age at the time of his offense.  He contends he was young and he chose to commit the serious misconduct which led to his discharge rather than seek assistance for his depression.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record also shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge to either an honorable or a general characterization of service.

6.  In view of the above, his request should be denied.

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)                                         AR20110022711





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ABCMR Record of Proceedings (cont)                                         AR20110022711



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