IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002927 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was receiving medical treatment for depression, stress, and suicidal behavior at the time he displayed the inappropriate behavior leading to his discharge.  He still receives medical treatment and medication therapy for his stress and depression.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a Standard Form 558 (Emergency Care and Treatment), dated 23 March 1986; and a Standard Form 513 (Medical Record Consultation Sheet), dated 23 March 1986.

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 11 June 1979 and held military occupational specialty 63B (Light Wheel Vehicle Mechanic/Power Generator Mechanic).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  His records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag)), dated 27 November 1985, which shows his commander initiated a flag because he was pending nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

4.  On 23 December 1985, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to charge of quarters (CQ) duty at the prescribed time on 24 November 1985.

5.  His records contain a Standard Form 93 (Report of Medical History), dated 16 May 1986, wherein he indicated he had previously or was currently suffering from depression and excessive worry.  He also indicated he was pending separation for an assault charge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Separations), chapter 10.  The examining medical official noted that his depression was due to a recent reduction in rank/grade and family problems.

6.  His records contain a Standard Form 88 (Report of Medical Examination) and a DA Form 3822-R (Report of Mental Status Evaluation), dated 16 May 1986, which show he met medical retention standards, he had no mental or psychological disorders, and he had the mental capacity to understand and participate in board proceedings.

7.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his records contain a DD Form 214 that shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 21 May 1986 under the provisions of Army Regulation 635-200, chapter 10.  He completed 6 years, 11 months, and 11 days of creditable active military service.

8.  There is no indication 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 policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	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.  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.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  However, based on the statement he made on his Standard Form 93, it appears that he was charged with assault which is an offense punishable under the UCMJ with a punitive discharge.

2.  His records also show he accepted NJP for failing to report to CQ duty at the appointed time.

3.  He was given a mental status evaluation that indicated he had no mental or psychological disorders.  He provides insufficient evidence to show he had any mental condition that could have impacted on his ability to know right from wrong.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an upgrade of his 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)                                         AR20130002927



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ABCMR Record of Proceedings (cont)                                         AR20130002927



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