IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130002913 


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 discharge under other than honorable conditions to enable him to receive veterans' medical benefits.

2.  The applicant states he suffered from chronic depression with suicidal thoughts during his last few months of service which caused his actions that led to his discharge.  He believes that his discharge should be upgraded based on his mental instability at the time.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his mental status evaluation, and excerpts from his medical records.

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 June 1980 for a period of 3 years, training as a medical specialist, and assignment to Fort Ord, California.  He completed basic training at Fort Leonard Wood, Missouri, and was transferred to Fort Sam Houston, Texas, for advanced individual training (AIT) on 16 August 1980.

3.  On 5 September 1980, he was recycled to another AIT class.  On 9 October 1980, he completed AIT and was transferred to Fort Ord for assignment to an infantry battalion as a company aidman.  He was advanced to pay grade E-2 on 1 February 1981 and he was reduced to pay grade E-1 on 20 April 1981 for reasons that are not present in his official records.

4.  On 21 May 1981, a mental health evaluation was conducted which revealed that the applicant was responsible for his actions and capable of distinguishing right from wrong and adhering to the right.

5.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Atlanta, Georgia, on 8 December 1981.

6.  However, his records do contain his DD Form 214 which shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 26 June 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 1 year and 10 days of active service.

7.  The documents provided by the applicant show a line-of-duty (LOD) investigation was conducted relating to him cutting his wrist and taking two lysergic acid diethylamide (commonly known as LSD) tablets in a suicide gesture to keep from deploying to Panama and as a means of getting out of the Army.  The LOD was determined to be "not in line of duty – due to own misconduct."  The applicant was diagnosed as having a passive-aggressive personality disorder.

8.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief, especially given the lack of facts and circumstances, the mental evaluation at the time, and the fact that he requested discharge in lieu of trial by court-martial.

4.  Accordingly, there appears to be no 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)                                         AR20130002913



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ABCMR Record of Proceedings (cont)                                         AR20130002913



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