IN THE CASE OF:	   

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014416 


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 (UOTHC) discharge to a general discharge.

2.  The applicant states during his first enlistment he was stationed in Germany.  His fellow Soldiers would tell him that something was wrong with him, that his behavior was not normal.  He also felt something was wrong with him.  He finally went to a psychologist at Erlangen, Germany.  He did not receive any help from the psychologist or the Army and when he arrived at Fort Hood, TX, his condition worsened.  He could not handle the stress nor did he have the skill or support of the military to deal with his mental health condition so he went absent without leave (AWOL) to escape his mental health condition.  When he got out of the Army he was diagnosed with "bipolar one."

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from a board certified psychiatrist. 

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.  On 22 June 1978, the applicant enlisted in the Regular Army.  The highest rank he held was sergeant.

3.  He reenlisted in December 1981.

4.  On 19 March 1983, he failed to report on the prescribed reporting date for movement.  Orders contained in his record show he surrendered to military authorities on 13 July 1987.

5.  A DD Form 458 (Charge Sheet) shows that on 17 July 1987 he was charged with being AWOL from his organization from 19 March 1983 to 13 July 1987.

6.  On 17 July 1987, he consulted with legal counsel, and he declared that he had been advised by his defense counsel that at the time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  This was merely due to the time required to request and mail the documents and records.  He was further advised by his defense counsel that he could not completely advise him without those records.  Nevertheless, knowing all that to be true, he waived all defenses that may have become known had his defense counsel been able to review his records.  Knowing all that to be true, he knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from 19 March 1983 to 13 July 1987.

	a.  He acknowledged that he was making that admission for administrative purposes only so he could process out of the Army and realized that in doing so he may be given a UOTHC discharge.

   b.  He further declared that his defense counsel had explained to him to his complete understanding and satisfaction all the legal and social ramifications of that type of discharge and what it would mean in the future. 

7.  On 17 July 1987, his legal counsel further advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the UCMJ, of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

   a.  The applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

	b.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	c.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	d.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. 

	e.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	f.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

	g.  He waived his rights.  He elected not to provide a statement in his own behalf.  

8.  His chain of command recommended he be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and that he be given a UOTHC discharge.

9.  On 17 July 1987, the separation authority approved his request to be discharged for the good of the service.

10.  On 8 September 1987, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in accordance with the separation authority's decision.  The DD Form 214 issued at that time shows his service was characterized as UOTHC.  It also shows he completed 4 years, 10 months, and 23 days of total creditable active military service with time lost from 19 March 1983 through 12 July 1987.
  
11.  The applicant's medical record is not available for review.

12.  He provides a letter from a board certified psychiatrist, dated 10 July 2013, addressed to "Whom it May Concern."  The author of the letter stated he initially evaluated the applicant in 2008.  He stated the applicant had clearly struggled with both his mental health and alcohol dependence in recent years.  He stated the applicant clearly tracked the beginning of his more severe mental health issues to a head injury prior to his military service and subsequently going AWOL.  He believed that was a plausible explanation for the type of mood disorder the applicant exhibited and would expect he had similar episodes during his service.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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 UOTHC is normally considered appropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  However, the evidence does not support his request that his UOTHC discharge be upgraded.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  He also admitted he was guilty of the offense for which he was charged.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  His service medical records are not available, and the letter he provides indicates the treating psychiatrist saw him 20 years after his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20130014416



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ABCMR Record of Proceedings (cont)                                         AR20130014416



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