IN THE CASE OF:	  

		BOARD DATE:	  6 July 2012

		DOCKET NUMBER:  AR20120000903 


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 an honorable discharge.

2.  The applicant states, in effect, he does not understand why he did not receive an honorable discharge because he was examined by an Army psychiatrist.  He is mentally disabled as a result of things that happened to him between the ages of 6 and 8 years of age.  There were too many people telling him what to do and he was in shock all the time.  He has had a problem dealing with this his entire life.  He is asking for an honorable discharge because a facility called Life Skills diagnosed him with depression.  Fort Knox, KY, will have the dates he was seen by the Army psychiatrist.

3.  The applicant provides a letter from the Social Security Administration, dated 16 November 2011.

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 enlisted in the Regular Army on 17 May 1979 and held the military occupational specialty 45N (Tank Turret Mechanic).  He was assigned to Company A, 2nd Battalion, 4th Training Brigade, U.S. Army Armor Center, Fort Knox, KY.  The highest grade he held while serving on active duty was private (PV1)/E-1.

3.  His records show he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 July 1979 for being absent without leave (AWOL) from 19 July 1979 to 22 July 1979.

4.  His record contains a series of DA Forms 4187 (Personnel Action) showing the following duty status changes and dates:

* 14 August 1979:  Present for Duty (PDY) - AWOL
* 5 September 1979:  AWOL - PDY
* 10 September 1979:  PDY - AWOL/Dropped from Rolls (DFR)
* 23 March 1980:  AWOL/DFR - Attached

5.  His DA Form 3822-R (Report of Mental Status Evaluation), dated 1 April 1980, shows he displayed normal behavior, was fully alert, fully oriented, had a clear thinking process, his thought content was normal and he had a good memory.  It was the medical official's impression that no significant mental illness presented, he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, was able to understand and participate in board proceedings, and he met medical retention standards.  Based on the medical official's assessment he was psychiatrically cleared.

6.  On 4 April 1980, court-martial charges were preferred against him for one specification of being AWOL from 10 September 1979 to 23 March 1980.

7.  On 4 April 1980, he consulted with legal counsel and he 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 other than 
honorable discharge, and the procedures and rights that were available to him.  


Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In this 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 bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  He elected to submit a statement on his own behalf as part of his request for discharge.  Essentially, his statement indicated that he had been going AWOL because he missed his wife and young son and could not stand having to be away from them.  He did like being in the Army, and stated that being in the Army did not agree with him.  He further indicated that he had found a job in his home town wherein he was able to make enough money to support his new family.

10.  On 23 April 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to PV1/E-1.  Accordingly, he was discharged on 21 May 1980.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 21 May 1980 in the rank/grade of PV1/E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  This form further confirms he completed 4 months and 28 days of creditable active service with 220 days of lost time.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of 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 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.

14.  Army Regulation 635-200, paragraph 3-7a, states 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.

15.  Army Regulation 635-200, paragraph 3-7b, states 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 argument that his mental problem contributed to his decision to go AWOL is noted; however, there is no evidence in his record, nor has he provided any to validate or support this claim.

2.  His 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 overall record of service.

3.  His record contains a history of NJP under the provisions of Article 15, court-martials, and extensive AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120000903





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ABCMR Record of Proceedings (cont)                                         AR20120000903



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