BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130003458 


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 a general discharge.

2.  The applicant states he had an undiagnosed mental disorder.  He was experiencing the onset of what was later diagnosed as a constellation of mental and personality disorders including schizophrenia, post-traumatic stress disorder (PTSD), and depression.  He was first hospitalized while on active duty for suicidal ideation.  He has also been hospitalized multiple times after being discharged.  He believes his military service contributed to these diseases, especially being deployed to Southwest Asia in support of Operation Desert Storm.  

3.  The applicant provides:

* Statement from an official at the Veterans Transitional Housing Program
* 2012 Psychiatric evaluation
* 2012 Behavioral health statement
* 2011 Medications Report
* 2011 Behavioral Health Pharmacology Initial Evaluation/Progress Note
* 2004 Psychiatric screen and evaluation





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 1 May 1989 and he held military occupational specialty 88H (Cargo Specialist).  He was initially assigned to the 368th Transportation Company, Fort Story, VA.  

3.  On 28 December 1989, he departed his unit in an absent without leave (AWOL) status and on 28 January 1990, he was dropped from Army rolls as a deserter.  He returned to military control on 5 February 1990. 

4.  On 28 February 1990, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and he was reduced to private/E-1. 

5.  He deployed with his unit and served in Southwest Asia in support of Operations Desert Shield/Storm from 5 September 1990 to 14 August 1991. 

6.  On 16 October 1991, he departed his unit in an AWOL status and on 15 November 1991, he was dropped from Army rolls as a deserter.  He returned to military control on 7 December 1991. 

7.  On 10 December 1991, in violation of an order from the commander restricting him to the company area, the applicant absented himself from the company area.  

8.  On 10 December 1991, he verbally informed other Soldiers, including several noncommissioned officers and commissioned officers that he was desperate to get out the Army and he would go AWOL again at the first opportunity.  

9.  On 12 December 1991, court-martial charges were preferred against the applicant for one specification of being AWOL from 16 October to 7 December 1991 and one specification of breaking restriction. 

10.  His immediate, intermediate, and senior commanders recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.  A Staff Judge Advocate reviewed the charges and also recommended trial by a special court-martial. 

11.  On 12 December 1991, 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 the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights 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.

12.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting 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 
* he acknowledged he understood if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service
* he did not desire a separation physical

13.  On 12 and 17 December 1991, his immediate, intermediate, and senior commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.



14.  On 20 December 1991, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, 
chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  

15.  On 24 December 1991, the applicant authenticated a statement indicating he did not desire a medical examination.  The statement also showed his PULHES as "1-1-1-1-1-1" and he had no medical conditions, physical defects, or assignment limitations on that date. 

16.  He was discharged on 24 December 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged 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 shows he completed 2 years, 4 months, and 23 days of creditable active service and he had lost time from 28 December 1989 to 4 February 1990 and from 16 October to 6 December 1991. 

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

18.  He submitted:

	a.  Psychiatric screen and evaluation, dated 9 June 2004, that also shows a history of his present illness and past psychiatric history. 

	b.  Behavioral Health Pharmacology Initial Evaluation and Progress Note, dated 5 October 2011 that shows he was diagnosed with schizoaffective disorder, bipolar type.

	c.  Medications Report, dated 13 December 2011, listing his active medications. 

	d.  Psychiatric evaluation, dated 17 October 2012, that shows he was diagnosed with schizoaffective disorder, bipolar type, onset in late adolescence, early adulthood.  It is possible he suffered his first psychotic break while on active military duty at which time symptoms were likely exacerbated by psychological stressors, namely his deployment to Southwest Asia. 

	e.  Behavioral health statement, dated 23 October 2012, that shows he is diagnosed with schizoaffective disorder and PTSD.  He goes to a clinic for therapy and medication management. 

	f.  A statement from an official at the Veterans Transitional Housing Program, dated 2 February 2013, which describes the applicant as a conscientious program participant who complied with all rules and expectations.  He also states the applicant suffers from numerous acute mental health disorders.  He opines the applicant was not a bad Soldier; he was suffering with an undiagnosed and untreated mental illness.  He should have received a medical discharge with follow-up treatment.  He deserves an honorable discharge and treatment. 

19.  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.  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 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.  Contrary to his contention that he had an undiagnosed mental disorder and that he was experiencing the onset of what would be later diagnosed as a constellation of mental and personality disorders including schizophrenia, PTSD, and depression, this diagnosis occurred nearly 20 years after his discharge.  The evidence of record clearly shows he wanted out of the Army and he threatened to go AWOL again if he was not discharged.  Furthermore, he was offered the option to undergo a medical examination at the time but he declined on more than one occasion.  

3.  There is no evidence that shows the applicant suffered from an undiagnosed mental condition, including PTSD or depression, during his military service.  Likewise, there is no evidence of record and none was provided with this application to show he suffered an injury or was diagnosed with an illness or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty. 

4.  The applicant was not discharged because of any medical condition as he contends.  He was discharged because he chose to go AWOL, on more than one occasion, and when he returned to military control he voluntarily chose to be discharged.  His service was not interrupted by any medical or mental condition.  He continuously went AWOL.

5.  When his chain command preferred court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made.  He could have elected trial by the court-martial if he believed he was innocent or if he believed his alleged mental disorder caused him to go AWOL. 

6.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  In view of the foregoing, there is 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 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)                                         AR20130003458



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ABCMR Record of Proceedings (cont)                                         AR20130003458



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