IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014  	  

		DOCKET NUMBER:  AR20140002064 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  He states:

	a.  He used to go to the Department of Veteran Affairs (VA) Hospital in Palm Beach, FL.

	b.  He was diagnosed with Post-Traumatic Stress Disorder (PTSD) and was treated for five years.

	c.  He enlisted under the buddy system.  They were supposed to be stationed together, but they were not.

3.  He provides no additional documents.

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 11 July 1978 for a period of three years.  His record is void of any indication that he enlisted under the buddy system.  

3.  His service record shows he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on four occasions for the following offenses:

* Stealing a brown leather jacket, of a value of about $115.00
* Being absent without leave (AWOL) from 1 to 3 September 1979 and from 4 to 5 September 1979
* Disobeying a lawful command from his superior commissioned officer
* Disobeying a lawful order from his superior noncommissioned officer (NCO)
* Being disrespectful toward his superior NCO 
* Being derelict in the performance of his duties by failing to conduct himself in a military manner by drinking on duty

4.  On 9 June 1980, charges were preferred against the applicant for stealing one pair of shoes, one pair of brown gloves, and one pair of black gloves, of a value of about $67.00, the property of Kirstadt Department Store.

5.  On 24 June 1980, he consulted with legal counsel and he voluntarily 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.  In doing so, he admitted guilt to the offense charged.  He acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the VA if a UOTHC discharge was issued to him.  He did not submit statements in his own behalf.  

6.  On 9 July 1980, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with a UOTHC discharge.

7.  He was discharged on 28 July 1980 with a UOTHC discharge after completing a total of 2 years and 18 days of creditable active service.  His DD Form 214 does not reflect any days of lost time.

8.  His service record is void of medical documentation which indicates he was treated or diagnosed with any type of mental condition.

9.  On 23 February 1989, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 UOTHC discharge is normally considered appropriate.

	a.  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.

	b.  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 applicant contends that he was diagnosed with PTSD.  However, his service record is void of evidence indicating he was diagnosed with this mental condition prior to his discharge or that he raised his mental condition as a possible defense at the time.  He provides no evidence now to show he has been diagnosed with a service-connected PTSD or other mental condition.

2.  His service record is void of evidence which indicates he enlisted under the buddy system.

3.  The applicant's voluntary request for discharge 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.  His service record does not indicate the request was made under coercion or duress.
4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  The evidence of record shows he received four Article 15s and was charged with stealing one pair of shoes, one pair of brown gloves, and one pair of black gloves, of a value of about $67.00.  

6.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now.

7.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20140002064





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ABCMR Record of Proceedings (cont)                                         AR20140002064



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