BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130008190 


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 his under other than honorable conditions discharge be upgraded.

2.  He states his first tour overseas was good, but he found that he was suffering with post-traumatic stress disorder (PTSD) and/or combat fatigue which he was unaware of during his second tour.  He served in the Gulf War and his health is rapidly declining.  There is no hope or cure for his medical issues, but he needs his discharge upgraded so that he can get the help he needs from the Department of Veterans Affairs (VA).

3.  He provides two self-authored statements.

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 26 January 1988 for a period of 4 years.  On 4 October 1991, he reenlisted for an additional 3 years.

3.  His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on two separate occasions:

   a.  On 23 October 1992, for failing to go at the time prescribed to his appointed place of duty on 3 and 11 September 1992; for being absent without leave (AWOL) from 29 September to 5 October 1992; and for being derelict in the performance of his duties on 9 September 1992.

	b.  On 2 November 1992, for being AWOL from 2 to 6 November 1992.

4.  On 9 November 1992, a bar to reenlistment was approved on the applicant and he subsequently requested discharge in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 16-5, voluntary separation of personnel denied reenlistment.  His request was approved on
17 November 1992.  However, on 25 February 1993, the approved chapter 16-5 was withdrawn.  The commander cited that the applicant had committed several acts of misconduct and was currently AWOL as justification for the withdrawal.

5.  On 12 July 1993, charges were preferred against him for being AWOL from
8 February to 8 July 1993.

6.  On 12 July 1993, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

7.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected to submit a statement on his behalf.



8.  In his statement he requested that he be issued a general discharge under honorable conditions.  He explained that when he arrived at his new duty station he was under a lot of stress due to marital problems and his father's health issues.  He offered that he was depressed and sought help through mental health.  Finally, the pressure of his situation and dissatisfaction with the Army led to him being AWOL.

9.  On 21 July 1993, he declined a medical examination.  His record is void of a mental health evaluation.  Additionally, there are no medical records available that indicate he was suffering from mental illness or any health issues prior to his AWOL period and subsequent discharge.

10.  His record is also void of any evidence that shows he was deployed in the Gulf War.  Additionally, his name does not appear on the Gulf War Deployment Roster.

11.  On 27 August 1993, the appropriate authority approved his request and directed his discharge under other than honorable conditions.

12.  On 17 September 1993, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions character of service.  It also shows he completed 5 years, 1 month, and 26 days of net active service during this period with lost time from 2 to 21 December 1992, 2 to 6 November 1992, and
8 February to 8 July 1993.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 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 contends, in effect, that his PTSD and/or combat fatigue from the Gulf War influenced his behavior.  There is no evidence and he has not provided any evidence to show he deployed in support of the Gulf War.  Likewise, there is no evidence and he has not provided any evidence to show he had a mental health condition that caused his misconduct, or that he sought counseling/medical treatment to correct his problem during his military service.  Therefore, this contention is not supported by the available evidence.  

2.  Further, his contention that his discharge should be upgraded in order to receive benefits from VA was considered.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he admitted he was guilty of being AWOL from 
8 February to 8 July 1993.  The record also shows he voluntarily requested separation for the good of the service under the provisions of chapter 10, Army Regulation 635-200 to avoid a trial by court-martial.

4.  His record of service included two Article 15s and 176 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20130008190



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008190



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1