IN THE CASE OF:	  

		BOARD DATE:	  29 October 2014

		DOCKET NUMBER:  AR20140004489 


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.

2.  The applicant states, in effect, during the Gulf War he had problems adjusting to combat and due to the stress of the military.  He asked for help from his leaders but he could not receive the assistance he was asking for.  The situation was very different from the life he was familiar with.  He received two charges for driving under the influence and felt he did not have an out.  Fear and the feeling that he was at his wits end caused him to drink more and he departed the area, afraid and lonely.  He stayed absent without leave (AWOL).  He has seen the problem the AWOL period caused him and his family and he wants to correct this problem in order to be a more productive person.  He was diagnosed with post-traumatic stress disorder (PTSD).

3.  The applicant provides his DD Form 214 and three statements of support.

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.  Having had prior active service, the applicant enlisted in the Regular Army on 10 March 1988.  He was assigned to the 1st Battalion, 5th Field Artillery, Fort Polk, LA, on an unknown date.  

3.  On 4 February 1993, he was reported AWOL from his assigned unit and he was subsequently dropped from the rolls (DRF) as a deserter.

4.  On 21 September 1993, he surrendered to military authorities at Fort Knox, KY.  He was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Knox.

5.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his available record contains:

	a.  A memorandum, dated 24 September 1993, subject:  Transmittal of Court-Martial Charges, wherein the PCF commander recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.

	b.  A memorandum, undated, subject:  Admission of AWOL for Administrative Purposes, wherein the applicant declared he had been advised by his legal counsel that records were not yet received with which to obtain a conviction by court-martial.  He knowingly, willingly, and voluntarily declared that he was AWOL from 4 February to 21 September 1993, he was making the admission so he could process out of the Army, and in doing so he realized he may be given an under other than honorable conditions discharge.  He further declared his legal counsel had explained to him to his complete understanding and satisfaction, all the legal and social ramifications of the type of discharge and what it would mean to him in the future.

	c.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) wherein it shows he was discharged on 19 January 1994, in the rank of private/E-1, 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, with an under other than honorable conditions characterization of service.  

6.  He completed 5 years, 2 months, and 23 days of net active service during this period of service and he had 229 days of lost time due to being AWOL.

7.  His name is shown on the Gulf Roster as having served in support of Operations Desert Shield/Storm.  However, there is no evidence in his available records that shows he was treated for or diagnosed with PTSD or any other mental health condition/disorder while serving on active duty.  His medical records are not available for review with this case.

8.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  The applicant provides three statements of support as follows:

	a.  A statement, dated 4 January 2013, wherein a retired sergeant major stated, in part, he had firsthand knowledge and experience of combat trauma and stressors and each person dealt with the stressors of war differently.  He has known the applicant for the past 11 years and he is a good person with a good heart.  He did not know him when he was a Soldier but his being a veteran of war should count for more than a discharge under other than honorable conditions.

	b.  A statement, undated, wherein Pastor LRT stated she has known the applicant for over 35 years.  He has strong family roots in the community, was a man of few words, possessed the potential to do great things, and he has strong resolve to do what is right.

	c.  A statement, undated and unsigned, wherein the point of contact on the statement, Dr. JW, stated the applicant has been under her care at the Department of Veterans Affairs Medical Center, Augusta, GA, since 1 January 2011 for PTSD and major depression.  His chronic mental illness clearly interfered with his day to day functioning.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of veteran benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally considered appropriate.

11.  Army Regulation 635-200, 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. 
   
12.  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's record is void of the specific facts and circumstances surrounding his discharge processing.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice 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.  In the absence of evidence to the contrary, it is presumed that he 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.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it is presumed his discharge accurately reflects his overall record of service.

3.  The applicant's contention that he had problems dealing with stressors of Army life is noted; however, it doesn’t negate the fact that he went AWOL and was DFR as a deserter during his active duty service.  

4.  His available records show at the time of his discharge he had almost 8 months of lost time due to being AWOL.  This misconduct rendered his service unsatisfactory.  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)                                         AR20140004489



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ABCMR Record of Proceedings (cont)                                         AR20140004489



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