BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017348 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states:

* the pressures of his military service and his family struggles triggered mental health issues making him unfit for duty
* the psychological stressors left him with no option but to take care of his family
* since his mental health issues were not addressed, his discharge should be upgraded

3.  The applicant provides a character reference.

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 26 November 1979.

3.  The applicant's record contains a DD Form 458 (Charge Sheet), dated
19 August 1982, that shows a court-martial charge was preferred against him for one specification of being absent without leave (AWOL) during the period 
17 January 1981 to 17 August 1982.

4.  On 20 August 1982, the applicant was advised by legal counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Having been so advised, he voluntarily submitted a request for 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.

5.  The applicant acknowledged:

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

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  he did not desire further rehabilitation or desire to continue in the military; 

	d.  he understood if his request was accepted he could be issued an under other than honorable conditions discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge;

	f.  he understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and
	g.  he was advised he could submit any statements he desired to accompany his request for discharge.  He elected not to submit a statement.

6.  The applicant's unit and intermediate commanders subsequently recommended approval with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 30 August 1982, 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.  He directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 22 September 1982, the applicant 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.  He completed 1 year, 2 months, and 29 days of creditable active service with 575 days of time lost.

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

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

	a.  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.  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.  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.

	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.  Evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  There is no evidence of record and he did not submit any evidence that shows he was under pressure from the military or his family.  There is no evidence that the struggled with or sought help for any mental health related issues.  He did not raise these issues when he had an opportunity to make a statement in his own behalf.  However, his record shows he had 575 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20120017348





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ABCMR Record of Proceedings (cont)                                         AR20120017348



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