IN THE CASE OF:	  

		BOARD DATE:	  26 May 2014

		DOCKET NUMBER:  AR20130018224 


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 to an honorable discharge. 

2.  The applicant states:

	a.  he feels this is an error because he was discharged under other than honorable conditions.  There is no doubt that he was honorable, but he was dealing with a mental illness (depression) and the disease of addiction which made it impossible to perform 100%.

	b.  during his service in the Army he failed to adapt to military life due to the disease and addiction.  He was dealing with the medical, mental, and physical effects from the disease of addiction.  His addiction also led to a life of imprisonment, homelessness, and depression.

	c.  he has since decided to make an effort to change his life.  He found himself in Narcotics Anonymous and learned how to deal with addiction one day at a time.  He has also been practicing spiritual principals.  He is currently enrolled in the Bowery Residence Committee transitional housing program and he is working with the Second Wind program (therapy with therapist and psychiatrist).

3.  The applicant provides a copy of 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 29 July 1980 for a period of 4 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  On 10 June 1981, charges were preferred against him for:

* leaving his appointed place of duty without authority
* failing to go at the time prescribed to his appointed place of duty 
      (4 specifications)
* disobeying a lawful order
* being disrespectful in language to a noncommissioned officer (NCO)
* larceny
* possessing marijuana 

4.  Trial by special court-martial was recommended.

5.  On 6 July 1981, he consulted with counsel and 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.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

6.  On 3 July 1981, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions with reduction in rank to private/E-1.

7.  On 22 July 1981, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 11 months and 24 days of creditable active service.  His service was characterized as under other than honorable conditions.

8.  There is no evidence that shows he was diagnosed with any mental condition or alcohol/drug abuse or dependency prior to his discharge. 

9.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.  Although the applicant contends he was dealing with a mental illness (depression) and the disease of addiction which made it impossible to perform 100%, there is no evidence and he provides no evidence which shows he was diagnosed with depression or alcohol/drug abuse or dependency prior to his discharge.  In any case, he could have referred himself for treatment.

2.  His brief record of service included multiple serious offenses for which special court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  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)                                         AR20130018224





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ABCMR Record of Proceedings (cont)                                         AR20130018224



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