IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120008331 


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:

* After his father died, he began to feel nervous and anxious as time went on
* He was unable to sleep in his bedroom for fear of dying; he began sleeping in the living room
* He was afraid to look up and he began to think he was crazy
* It took him 4 or 5 years to fully understand what happened
* He lived with regret that he was unable to complete his military service 
* Both of his sons served honorably in Kosovo and Iraq

3.  The applicant did not provide any 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 enlisted in the Regular Army on 7 February 1978 and he held military occupational specialties 91C (Clinical Specialist) and 91B (Medical Specialist).  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  He was assigned to
1st Battalion, 5th Cavalry, Fort Hood, TX.

3.  On 3 July 1979, he departed his unit in an absent without leave (AWOL) status and he returned to military control on 9 July 1979.

4.  On 12 July 1979, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for his AWOL offense.

5.  On 4 August 1980, he again departed AWOL and on 3 September 1980, he was dropped from the rolls of the Army as a deserter.  He was apprehended by civil authorities in Del Rio, TX on 8 December 1980 and he was returned to military control at Fort Sill, OK.

6.  On 16 December 1980, he underwent a mental status evaluation at Fort Sill, OK.  The military chief of psychiatric service cleared him psychiatrically for any administrative actions deemed appropriate by his chain of command.

7.  On 24 December 1980, court-martial charges were preferred against the applicant for one specification of being AWOL from 4 August to 8 December 1980.

8.  On 23 December 1980, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercions whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he acknowledged he understood if the 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law;

	d.  he stated that under no circumstances did he desire further rehabilitation or to perform further military service; and

	e.  he elected not to submit a statement in his own behalf.

9.  On 20 January 1981, the separation authority, a major general, approved the applicant's 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 private (PV1)/E-1.

10.  On 29 January 1981, the applicant was discharged accordingly.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 2 years, 7 months, and
9 days of creditable active service with 132 days of time lost.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	c.  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 record shows he was charged with the commission of an offense 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.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant describes mental issues of nervousness, anxiety, and difficulty sleeping at the time but he does not support this contention with any corroborating evidence.  More importantly, he underwent a mental status evaluation prior to discharge.  The military chief of psychiatric service cleared him psychiatrically for any administrative actions deemed appropriate by his chain of command.

3.  The applicant's sons' service in Kosovo and Iraq is commendable.  However, this does not mitigate the fact that he was AWOL and under court-martial charges.  He chose to request a voluntary discharge in lieu of facing a court-martial that could have adjudged a bad conduct discharge.

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.

5.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either 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)                                         AR20120008331



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ABCMR Record of Proceedings (cont)                                         AR20120008331



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