IN THE CASE OF:	

		BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130007019 


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 that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.  

2.  The applicant states his absent without leave (AWOL) offense occurred after he had served honorably in two conflict zones (Kuwait, Saudi Arabia).  He contends that his AWOL offense was the direct result of a psychological disorder caused by experiences during his deployment.  He adds that the symptoms are documented in his military files.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), a Vet Center Intake Assessment, and a third-party statement of support.

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 March 1988.  He was awarded military occupational specialty 31L (Wire Systems Installer) upon completion of initial entry training.  He was promoted to specialist (SPC)/E-4 on 
1 July 1989.  

3.  His records show that he served in Southwest Asia (SWA) from 1 September 1990 to 4 April 1991.  

4.  He departed AWOL on 6 May 1991 and remained AWOL until 16 January 1992 (256 days).  

5.  His complete separation packet is not available for review; however, he submitted a statement, which was also signed by his defense counsel, in which he declared that he had been advised by his defense counsel that at that time, the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial due to no fault of the government, but merely to the time required to request and mail the documents and records.  He also acknowledged that he had been advised by military counsel that he could not completely advise him without those records, and that he realized his defense counsel was limited by the few records that were available as to the advice he could give.  Nevertheless, knowing all this to be true, the applicant waived all defenses that may have become known had his defense counsel been able to review his records.  He also willingly and voluntarily declared that he was AWOL from the United States Army from 6 May 1991 to 17 January 1992.  He made this admission for administrative purpose only so he could process out of the Army and realized in doing so he could be issued an other than honorable conditions discharge.  He also declared that his military defense counsel had explained to him to his complete understanding and satisfaction all of the legal and social ramifications of this type of discharge, and what it would mean to him in the future.

6.  Orders Number 58-5, dated 30 March 1992, issued by Headquarters (HQ), U.S. Army Personnel Control Facility, Fort Knox, KY directed the applicant's reduction from SPC/E-4 to private (PVT)/E-1 effective 18 March 1992.  These orders cite as the authority for the reduction Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).

7.  Orders Number 091-205, dated 31 March 1992, issued by HQ, U.S. Army Armor Center, Fort Knox, KY directed the applicant's discharge effective 14 April 1992.  

8.  His DD Form 214 shows he was discharged on 14 April 1992 in the rank/grade of PVT/E-1 after completing 3 years, 4 months, and 23 days of creditable active service and that he accrued 256 days of lost time.  It also shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.

9.  There is no evidence in the applicant's available records indicating he was suffering from a disabling psychological disorder at the time of his AWOL offense.  

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 13 September 2000.  

11.  He provides Vet Center Intake Assessment indicating he has been receiving therapy since June 2012 related to post-traumatic stress disorder (PTSD).  

12.  He also provides a statement of support, provided by a representative from the Veterans of Foreign Wars, in which the author points out that it was because of the applicant's mental suffering during the Gulf War that he did not return to duty.  The author further states that although the applicant acted out of fear when he went AWOL, he served honorably when called to fight in the Persian Gulf War.  

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

	a.  Chapter 10 of that regulation 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 contention that his discharge should be upgraded because his AWOL offense was the direct result of a psychological disorder caused by experiences during his deployment has been carefully considered.  

2.  His complete separation packet is not available.  The available evidence indicates he was charged with the commission of an offense or offenses punishable under the Uniform Code of Military Justice 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.  It is presumed that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial after consulting with legal counsel.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  He contends that his AWOL offense was a direct result of a psychological disorder due to his service in SWA; however, there is no evidence in his available military records, and he provided none, that substantiates his claim.  

4.  His service in SWA was considered; however, his record of indiscipline includes 256 days of lost time due to being AWOL.  Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, 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.  Based on the forgoing evidence, there is no basis to grant the 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)                                         AR20130007019



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007019



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1