BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110023928 


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 upgrade of his discharge. 

2.  The applicant states:

* During his time of service he continually sought assistance from his First Sergeant but received none
* All his issues since his departure from the military (divorces, unemployment, debt, jail, etc) are due to his time in the military

3.  The applicant provides the following: 

* Two-page doctor’s assessment
* Separation Authority discharge approval
* Battalion Commander discharge recommendation
* Company Commander discharge recommendation
* Request for Discharge for the Good of the Service
* Applicant Statement submitted with discharge request
* ATZK-PM Form 4939, Characterization of Service, Checklist for Administrative Discharge Actions
* DA Form 4126-R (Bar to Reenlistment Certificate)
* DD Form 458 (Charge Sheet)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 156-208, Reassignment orders to Transition Point 


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 4 April 1990. His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 45K (Tank Turret Repairer). The highest rank/grade he attained while serving on active duty was private/E-2. 

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 12 April 1991 for being absent from his appointed place of duty and failure to secure his assigned military vehicle. 
 
4.  On 15 May 1992, charges were preferred against the applicant for being absent without leave (AWOL) during the period 6 April 1992 through 12 May 1992. 

5.  On 15 May 1992, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.
 
6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veteran’s Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.


7.  At the time of his request for discharge he indicated that he went AWOL for fear of his First Sergeant. 

8.  On 28 May 1992, the separation authority approved the applicant's request for discharge and directed an under other than honorable discharge.  On 16 June 1992, the applicant was discharged accordingly.  The applicant’s DD Form 214 he was issued shows he completed 2 years, 1 month, and 7 days of creditable active military service.

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

10.  The applicant provided a two-page doctor’s assessment which states the applicant served during Desert Storm.  During this time the applicant was reassigned to a body recovery/burial detail when on one of the assignments an explosion occurred and the applicant killed one of the assailants.  The applicant had difficulty dealing with this incident.  Upon reassignment to Fort Riley the applicant attempted suicide and was hospitalized for depression.  The applicant reports symptoms of Post-Traumatic Stress Disorder and depression.  The doctor states the severe psychiatric symptoms are directly attributable to the applicant’s service. 

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  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’s request that his discharge be upgraded was carefully considered and found to lack sufficient evidence to grant relief. 

2.  There is no evidence in the available records and the applicant didn’t provide any evidence which shows he sought assistance through his chain of command for issues involving his First Sergeant or any other Soldiers.  He could have expressed these concerns at the time he requested discharge but he failed to take the opportunity to make a statement.

3.  Although the applicant provided medical documentation which indicates that he experienced trauma while in military service, there is no indication that this was the direct cause of his indiscipline. 

4.  His record includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ.

5.  His record also shows he was charged with the commission of an offense punishable under the UCMJ 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 coulday have resulted in a felony conviction.

6.  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 overall record of service.

7.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or 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)                                         AR20110023928





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ABCMR Record of Proceedings (cont)                                         AR20110023928



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