IN THE CASE OF:	  

		BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120021783 


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.

2.  The applicant states:

* he was suffering from attention deficit hyperactivity disorder (ADHD) prior to his enlistment
* while in school, he had trouble adjusting to rules and obedience to anyone with authority
* his mother was always trying to help him get along with others, but due to his condition it was very hard
* he joined the Army thinking that it would help him get over his condition
* while in high school, he was suspended several times due to his ADHD
* the rigors of military life increased the severity of his ADHD
* his fellow Soldiers and leaders did not provide any kind of assistance towards his health
* because no one came to his assistance, he began to abuse alcohol to escape his demons
* the decisions he made were not clear at the time and now he is suffering from those decisions
* he requests a second chance at a normal life in order to be able to seek the help he needs

3.  The applicant provides a letter of support by his mother.

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 19 June 1979.  Upon completion of initial entry training he was awarded military occupational specialty 16E (Hawk Crewmember).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  6 November 1979 for failing to go at the time prescribed to his appointed place of duty on 31 October 1979;

	b.  28 November 1979 for going from his appointed place of duty without authority on 22 November 1979;

	c.  15 February 1980 for being absent without authority from his unit from
29-30 January 1980; and

	d.  5 June 1980 for failing to go at the time prescribed to his appointed place of duty on 23 May 1980.

4.  He departed absent without leave (AWOL) on 27 June 1980 and on 26 July 1980, he was dropped from the rolls (DFR) of the Army.  He remained in a DFR status until he surrendered to military authorities on 10 October 1980.

5.  On 17 October 1980, court-martial charges were preferred against him for the AWOL/DFR offense.

6.  His military record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 22 October 1980.  This evaluation shows his behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good.  He was also found to have no significant mental illness and that he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

7.  On 22 October 1980, he consulted with legal counsel and 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, based on charges being preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged in his request that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

9.  On 10 December 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 24 December 1980, he was discharged accordingly.  He completed 
1 year, 2 months, and 23 days of creditable active with 105 days of time lost.

11.  On 19 January 1982, after careful consideration of his military records and all other available evidence, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  He provides a letter of support, dated 19 September 2003, wherein his mother essentially indicates that he has been suffering from attention deficit disorder since an early age.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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 discharge is normally considered appropriate.

	b.  Paragraph 3-7a 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 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 contention that his under other than honorable conditions discharge should be upgraded because he was suffering from ADHD prior to his enlistment has been carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  Although he may be suffering from ADHD, there is no evidence he was suffering from a disabling mental condition at the time of the misconduct that led 

to his discharge.  He was evaluated by competent medical authority prior to his discharge and he was found mentally responsible and he was considered able to distinguish right from wrong.  Therefore, it is concluded that his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP on four occasions, court-martial charges for being AWOL, and 105 days of lost time.  Based on his record of indiscipline, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120021783



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ABCMR Record of Proceedings (cont)                                         AR20120021783



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