IN THE CASE OF

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130020335 


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 general, under honorable conditions discharge.

2.  The applicant states:

* he suffered from depression as a child, but it was not diagnosed until he attempted to commit suicide in 1996 
* he never felt he was a part of his family
* due to his mother's hurt, she beat him every time she got drunk and he was hit on his private parts and beaten on his head
* the pain and abuse never went away, but he held it in
* when his brother died in 1983, he was told by his mother that his real father was married and both women gave birth at the same time in the same hospital
* while in the Army he married, had a child, and a family for the first time which were taken from him when his wife started cheating
* he started drinking heavily and crying nightly, which led to him making bad decisions
* he felt suicidal before he went absent without leave (AWOL)
* shortly afterwards, his wife was run over by an 18 wheeler truck and he saw her broken body, which resulted in a closed casket funeral
* his in-laws took custody of his children 
* he lost everything, his wife, children, brother, and sanity
* he loved the Army and if he could, he would serve again
* he is seeing a psychiatrist, on medication, and living in a Veteran's shelter
3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement

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 30 September 1982.
	
3.  The applicant's record contains a DD Form 458 (Charge Sheet) which shows court-martial charges were preferred against him on 23 February 1989 for being AWOL from 12 April 1988 to 23 February 1989.

4.  On 3 March 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for 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 understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although the applicant's separation packet says he would submit a statement on his own behalf, there is no statement attached to his discharge packet. 
5.  The applicant's unit commander and intermediate commanders subsequently recommended approval with the issuance of an under other than honorable conditions discharge certificate.

6.  On 10 March 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and be issued an under other than honorable conditions discharge.

7.  On 31 March 1989, the applicant was discharged accordingly.  He completed 5 years, 7 months, and 20 days of creditable active service with 296 days of time lost.  

8.  On 30 July 1998, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  There is no evidence of record nor did the applicant submit any evidence that shows he informed or sought help from his chain of command or the mental health community for his depression or the loss of his family.

3.  His service records show he was AWOL for a total of 296 days.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing evidence, there is an insufficient basis for upgrading his 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)                                         AR20130020335





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ABCMR Record of Proceedings (cont)                                         AR20130020335



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