IN THE CASE OF:    

		BOARD DATE:  7 October 2014   	  

		DOCKET NUMBER:  AR20140004449 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states, in effect, he:

* was young and not aware of what he was doing
* had no one to help him while he was overseas
* was diagnosed as emotionally disturbed at Woodbridge Diagnostic 
Center
* endured a lot of child abuse
* has been diagnosed with severe bi-polar and Post-Traumatic Stress Disorder (PTSD)
* is currently taking medication to be stable
* is very remorseful for his past actions
* entered the military with a diagnosis of emotional disturbance
* is training to own a barbershop

3.  The applicant provides a letter of support and two self-authored statements.

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's record shows he enlisted in the Regular Army on 9 September 1981 at the age of 17.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 21 April 1983, charges were preferred against the applicant for being absent without leave (AWOL) for the periods 27 February 1983 through 14 March 1983 and 15 March 1983 through 20 April 1983.   

4.  On 22 April 1983, the applicant consulted with counsel and 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 procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 3 May 1983, the separation authority approved the applicant’s request and directed he receive an under other than honorable discharge and reduction to the lowest enlisted grade. 

7.  On 26 May 1983, the applicant was discharged accordingly.  He completed 1 year, 6 months, and 26 days of total creditable active military service, with 49 days of lost time due to being AWOL.

8.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations.

9.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides than 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 members service 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.

11.  Army Regulation 635-200, 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  When presented with the court-martial charges and after consulting with counsel, he elected not to make a statement explaining his AWOL as he now does.

3.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He could have elected a trial if he believed there were extenuating circumstances surrounding his AWOL status.

4.  The applicant contends that his discharge should be upgraded because he was young and not aware of what he was doing at the time of his service.

5. Records show the applicant was only 17 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20140004449



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ABCMR Record of Proceedings (cont)                                         AR20140004449



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