BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110025148 


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, in effect, he was young and immature when he entered military service and his father, who was semi-disabled, needed his help to run the household.  He states he has a history of childhood sexual abuse and his anxiety increased when he was assigned in an all-male environment.  At the time he was also suffering from a substance abuse problem.  He further states he has been diagnosed with post-traumatic stress disorder (PTSD) as a result of being sexually abused and believes he conducted himself in a responsible manner while in service, having never been disciplined for anything other than being absent without leave (AWOL).

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 records show he was born on 7 November 1959 and he enlisted in the Regular Army on 29 September 1977, at the age of 17 years and 7 months.  His records also show he completed basic combat training.

3.  His record contains DA Forms 4187 (Personnel Action) which show he departed AWOL on 8 February 1978 and was dropped from the rolls on 9 March 1978.  

4.  On 9 March 1978, charges were preferred against him for without authority and with intent to remain away therefrom permanently, absenting himself from his unit on or about 8 February 1978 in violation of the Uniform Code of Military Justice (UCMJ), Article 86.

5.  His record contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows he was apprehended and returned to military control on 13 March 1978 at the Presidio of San Francisco, CA.

6.  The complete facts and circumstances of his discharge are not available for review.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 13 April 1978 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for conduct triable by court-martial with an under other than honorable conditions discharge.  He completed 5 months and 13 days of creditable active service with 32 days of time lost (8 February through 11 March 1978).

7.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for substance abuse, PTSD, or any other mental disorder while serving in the Army.

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

9.  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.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Paragraph 3-7b of Army Regulation 635-200 states 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 to upgrade his undesirable discharge to a general discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that 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.

3.  His record is void of any evidence and he has not provided any evidence which shows he was ever diagnosed with or treated for substance abuse, PTSD, or any other mental disorder while serving in the Army.  Additionally, although he was 18 years of age at the time of his offenses, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  The applicant's record of service shows he was AWOL for the period 8 February through 11 March 1978.  Based on this record of indiscipline, his  misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions.
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)                                         AR20110025148



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ABCMR Record of Proceedings (cont)                                         AR20110025148



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