IN THE CASE OF:	  

		BOARD DATE:  18 March 2014

		DOCKET NUMBER:  AR20130012659 


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 upgrade of his under other than honorable conditions discharge to an honorable or a general discharge.

2.  The applicant states:

* approximately a year after his return from Operation Desert Storm, he began to have recurring nightmares of the war
* he had flashbacks of bombing raids, corpses, witnessing wounded Soldiers on the battlefield and flashbacks of night patrols
* he suffered long hours of depression, severe mood swings, profuse sweating, outbursts of anger, and difficulty concentrating
* he reported his symptoms to his commander but his chain of command did not believe his symptoms were real
* civilian hospitals and doctors later explained to him that his symptoms were a result of the trauma from the war
* his condition continued to worsen and he took leave and went to Atlanta to seek medical attention where a counselor told him he had post-traumatic stress disorder
* he is now on anti-depressants and is seeing a therapist and a psychiatrist

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a list of medications, a receipt from Walgreen Pharmacy, and Department of Veterans Affairs (VA) medical records. 


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 15 August 1989 and he held military occupational specialty 77L (Petroleum Laboratory Specialist).  He served in Southwest Asia from 16 August 1990 to 2 April 1991. 

3.  He was awarded or authorized the Southwest Asia Service Medal with two bronze service stars, National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Hand Grenade Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Parachutist Badge, one overseas service bar, and Kuwait Liberation Medal. 

4.  On 20 March 1992, he departed his Fort Bragg unit on 14 days of ordinary leave through 3 April 1992.  He did not return from leave.  His chain of command reported him in an absent without leave (AWOL) status on 3 April 1992 and subsequently dropped him from the rolls as a deserter on 4 May 1992. 

5.  He was apprehended by civil authorities in Decatur, GA on 17 October 1992 and returned to military control.  He was assigned to the U.S. Army Personnel Control Facility, Fort Knox, KY for processing. 

6.  On 22 October 1992, his command preferred court-martial charges against him for one specification of AWOL from 3 April 1992 to 17 October 1992.   

7.  On 22 October 1992, 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 Uniform Code of Military Justice (UCMJ) that 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.

8.  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 elected not to submit a statement on his own behalf

9.  On 28 October 1992, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander stated the applicant's conduct rendered him triable by a court-martial which could lead to a bad conduct or a dishonorable discharge.  There did not appear to be any reasonable ground to believe that he is, or was at the time of his misconduct, mentally defective, deranged, or abnormal. 

10.  On 5 November 1992, consistent with the chain of command recommendations and subsequent to a legal review for legal sufficiency, 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.

11.  On 30 November 1992, the applicant was discharged accordingly.  His DD Form 214 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, 9 months, and 2 days of creditable active service and he had 197 days of lost time. 

12.  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. 

13.  He provides a listing of his current medications together with a receipt from a pharmacy.  He also provides selected post-discharge VA medical records, consults, questionnaires, and correspondence.  

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 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.

15.  According to the Manual of Court-Martial (MCM), a violation of Article 86 of the UCMJ, AWOL for more than 30 days carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year. 

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.  When his chain command preferred court-martial charges against him, the applicant 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 of the AWOL charges or had mitigating circumstances.

3.  Furthermore, he served in Southwest Asia from16 August 1990 to 2 April 1991 and he was at Fort Bragg, NC from the date of return from Southwest Asia to the date he went AWOL, 3 April 1992.  Yet, there is no indication or evidence he raised or addressed the issues he now describes with his chain of command or any other support/medical channels at his installation.  

4.  Additionally, when court-martial charges were preferred against him, this would have been a perfect forum to raise his issues.  Yet, he did not mention any issues and he did not even provide a statement on his own behalf to raise the issues he now contends.  For unknown reasons he did not bring up the issues. 

5.  The evidence of record clearly shows he went AWOL for 197 days by choice and his AWOL was terminated by apprehension.  According to the MCM, a violation of Article 86 of the UCMJ, AWOL for more than 30 days carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year.  The applicant in this case was allowed to choose the administrative discharge that carries a more favorable characterization of service than the bad conduct or dishonorable discharge he could have received. 

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, he is not entitled to 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)                                         AR20130012659





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ABCMR Record of Proceedings (cont)                                         AR20130012659



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