IN THE CASE OF:	  

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130009803 


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.

2.  The applicant states, in effect:

* his discharge was a result of his disabilities (mental disorder) that were incurred and aggravated during his active duty service
* he was not properly evaluated which resulted in an unjust finding and the type of discharge he received
* he attempted to explain to his commander the reasons he went absent without leave (AWOL), but no referrals were made and he was ordered back to regular duty
* his life has since been a roller coaster ride of drugs and alcoholism in an attempt to mask what was really happening to him
* he now leads a normal life that was achieved via treatment, therapy, and medication

3.  The applicant provides a medical document, dated 17 May 2013.

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 25 January 1980 and he held military occupational specialty 19E (Armor Crewmember).  

3.  On 24 April 1980, while still in training, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command.  

4.  He served in Germany for an unknown period of time.  He was assigned to the 3rd Battalion, 33rd Armor.

5.  On 2 September 1980, he departed his unit in an AWOL status and on 1 October 1980, he was dropped from the rolls as a deserter.  He appears to have returned to military control on or about 8 October 1980.  

6.  On 19 November 1980, he again departed his unit in an AWOL status.  He surrendered to military authorities at Fort Sill, OK, on or about 29 December 1980.  

7.  On 20 January 1981, court-martial charges were preferred against the applicant for two specifications of being AWOL from 2 September to 9 October 1980 and 19 November to 29 December 1980.  

8.  On 21 January 1981, 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 was 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.  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 discharge under other honorable conditions
* 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 Veterans Administration
* 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 elected not to submit a statement on his own behalf

9.  On 27 February 1981, 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.  On 10 March 1981, the applicant was discharged accordingly.

10.  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.  He completed 11 months and 8 days of creditable active service with lost time from 2 September to 9 October 1980 and 19 November to 18 December 1980. 

11.  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. 

12.  He provides a statement from Metrocare Services, Special Needs Offender Program, Dallas, TX, dated 17 May 2013, which shows he has been a client of Metrocare, on and off from April 2006 through April 2013.  He has been diagnosed with schizoaffective disorder.  

13.  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.  With respect to the applicant's arguments:

	a.  Contrary to his contention that his discharge was unjust, the available evidence shows he departed in an AWOL status (and was subsequently in a deserter status) by choice.  Likewise, his election of the discharge in lieu of the court-martial was also by choice.  He could have elected trial by a court-martial if he believed his alleged "mental disorder" led to him being AWOL.  

	b.  Also contrary to his contention that he tried to explain his reason for going AWOL to his commander, the evidence of record shows when he submitted his voluntary request for discharge he did not raise any issues or submit a statement on his own behalf.  This would have been the proper forum to raise such issues. 

	c.  Nowhere in his records does it show he suffered from a mental, psychological, or medical condition that led to his extensive history of misconduct.  There is no evidence in his records and he did not provide any substantiating evidence that shows his misconduct was a result of a mental condition.  

3.  Based on his record of indiscipline, specifically the length of his AWOL, 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)                                         AR20130009803



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ABCMR Record of Proceedings (cont)                                         AR20130009803



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