IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130007648 


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 discharge under other than honorable conditions be upgraded to an honorable or general discharge.

2.  The applicant states that his discharge was unjust because he was under heavy medication for a psychiatric condition and was separated in lieu of trial by court-martial; however, he was not pending trial by court-martial or any legal action.

3.  The applicant provides a one-page explanation of his circumstances, his Department of Veterans Affairs (VA) Rating Decision, and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 10 May 1988 for a period of       4 years and training as a cannon crewman.  He was initially sent to the English as a Second Language (ESL) course at Lackland Air Force Base, Texas for 21 weeks and on 4 November 1988 he was transferred to Fort Sill, Oklahoma to undergo his one-station unit training (OSUT).  He completed his OSUT and was assigned to Fort Sill for his first and only duty assignment. 

3.  On 13 July 1989, nonjudicial punishment was imposed against him for failure to go to his place of duty and two specifications of disobeying lawful orders from superior noncommissioned officers. 

4.  On 14 August 1989, nonjudicial punishment was imposed against him for failure to go to his place of duty. 

5.  On 29 August 1989, charges were preferred against the applicant for two specifications of breaking restriction, two specifications of failure to go to his place of duty, violation of a lawful general regulation by entering a restricted area, disobeying a lawful order from a superior noncommissioned officer (NCO), two specifications of being disrespectful toward superior noncommissioned officers, disobeying a lawful command from a superior commissioned officer, and attempting to absent himself from his unit without authority.  His chain of command recommended that he be tried by a special court-martial empowered to adjudge a Bad Conduct Discharge.

6.  On 7 September 1989 after consulting with defense counsel, the applicant submitted a request for 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

7.  On 25 September 1989, the appropriate authority (a major general) approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge. 

8.  On 28 September 1989, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 1 year, 4 months, and 19 days of active service. 
9.  On 2 August 1993, his mother applied to the Army Discharge Review Board (ADRB) for an upgrade of the applicant’s discharge contending that the applicant’s discharge was improper because the applicant had symptoms of mental illness prior to his discharge and that at the time of his application was being followed by a psychiatrist and was on medication.

10.  After reviewing all of the evidence in his case, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny the request for an upgrade of his discharge on 19 April 1996.

11.  A review of his official records failed to show evidence of the applicant being determined to be mentally incompetent or having a mental illness that caused his misconduct.  Additionally, there is no evidence to show that he could not understand the difference between right or wrong and was unable to adhere to the right.

12.  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.  The applicant’s voluntary request for separation 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 regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances and he was properly reduced to the pay grade of E-1.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his repeated misconduct and the lack of mitigating circumstances at the time.  

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130007648





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ABCMR Record of Proceedings (cont)                                         AR20130007648



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