IN THE CASE OF: 

		BOARD DATE: 26 August 2014

		DOCKET NUMBER:  AR20140001143


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 honorable.

2.  The applicant states that:

	a.  He served in the Regular Army (RA) from 1988 to 1991.  He was first diagnosed with generalized anxiety with panic attacks while on active duty in the RA.  His evaluation and assessment were done at the military entrance processing station (MEPS) in Beckley, West Virginia.  He was evaluated by a psychologist and a neurologist.  A recommendation to be discharged was given to his commanding officer.  

	b.  In 2011 he spent approximately one month at Bay Pines, Virginia, for anxiety disorder, a disorder he was diagnosed with while in the Army at Fort Knox, Kentucky.  

3.  The applicant did not provide any supporting documentation.

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 June 1989.  He did not complete training and was not awarded a military occupational specialty.  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he completed basic training and reported to Fort Knox, Kentucky for advanced individual training on 18 August 1989.  He was reported absent without leave (AWOL) effective 9 September 1989.  Item 21 (Time Lost) shows five entries for time lost totaling 168 days. 

4.  He accepted nonjudical punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on:

* 11 September 1989 for being AWOL from 5 to 9 September 1989
* 2 November 1989 for being AWOL from 6 to 27 October 1989 

5.  On 6 April 1990, charges were preferred against the applicant for being AWOL from 13 November 1989 to 3 February 1990 and for AWOL and desertion from 16 February 1990 to 30 March 1990.

6.  His discharge packet is incomplete.  However, sufficient evidence shows he consulted with military counsel who submitted a statement on the applicant's behalf confirming the applicant's voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The statement, dated 16 April 1990, noted the applicant was very young when he joined the Army and experienced several personal difficulties including the death of his mother and the pregnancy of his girlfriend.  He was given leave to go home and eventually he went AWOL to take care of his family.  He admitted his guilt and requested a UOTHC discharge rather than trial by court-martial.

7.  On 19 April 1990, the separation authority approved the request and directed a UOTHC discharge.

8.  A USAARMS Form 2722 (Medical Examination for Separation Statement of Option), dated 20 April 1990, shows the applicant did not desire a separation medical examination and it was determined that a medical examination for separation was not required.
9.  On 24 April 1990, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had completed a total of 5 months and 6 days of active duty service.  

10.  On 16 September 2005, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in the type and nature of his discharge.  

11.  Army Regulation 635-200 provides 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 UOTHC was considered appropriate at the time.

	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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  There is no medical evidence showing the applicant had been diagnosed with  generalized anxiety with panic attacks while on active duty.  

2.  The applicant's discharge packet is incomplete.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  Furthermore, in the absence of evidence showing otherwise, the discharge process must be presumed to have been in accordance with applicable law and regulations.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20140001143



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