IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140009407 


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 that his discharge be upgraded to a fully honorable discharge.

2.  The applicant states he received a gunshot wound while in the service.  While he was recovering he was diagnosed with major depression and spent time in the psychiatric ward.  He went absent without leave (AWOL) and when he returned to duty was discharged under other than honorable conditions (UOTHC).  His frame of mind was such that he could not make good choices or decisions for himself due to his emotional mental state.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 8 June 1979 for a period of      3 years, training as an administrative specialist, and assignment to Fort Hood, Texas.  He was transferred to Fort Jackson, South Carolina to undergo his one-station unit training. 

3.  He completed his basic training and was supposed to report to his advanced individual training unit at Fort Jackson on 1 August 1979 but instead went AWOL and remained absent in desertion until he was arrested by civil authorities in Sioux Falls, South Dakota on civil charges of strong armed robbery, false impersonation, and carrying a concealed weapon.  He remained confined by civil authorities until 13 March 1981 when he was returned to military control at Fort Carson, Colorado pending a determination of his status. 

4.  He again went AWOL on 23 May 1981 and remained absent in desertion until he was apprehended by civil authorities in Sioux City, Iowa on 13 June 1985.  He was returned to military control at Fort Knox, Kentucky where charges were preferred against him on 25 June 1985 for being AWOL from 1 August 1979 to   4 January 1981 and from 23 May 1981 to 13 June 1985. 

5.  On 26 June 1985, after consulting with defense counsel, the applicant submitted a 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 he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge UOTHC and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his behalf and declined a physical examination.

6.  The applicant’s commander indicated that there did not appear to be any reasonable ground to believe that the applicant is or was at the time of his misconduct, mentally defective, deranged or abnormal.  His records also contain a mental status evaluation by a Medical Corps lieutenant colonel which indicates that the applicant was mentally responsible and was cleared for administrative action deemed appropriate by the commander.


7.  On 2 July 1985, the appropriate authority ( a major general) approved his request and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, and furnished a discharge under other than honorable conditions. 

8.  On 1 August 1985, he was discharged accordingly.  He completed 5 months and 22 days of total active service and had 2,072 days of lost time due to AWOL and confinement by civil authorities.

9.  A review of his official records failed to show any evidence of the applicant being shot or any evidence to support his contentions.

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

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

	a.  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 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge UOTHC would normally be given an individual who was discharged for the good of the Service.

	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.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him. Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances

2.  The applicant's contentions have been noted and not only are they not supported by the evidence of record, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence during such a short period of service.  His service simply did not rise to the level of under honorable conditions.

3.  In view of the foregoing, there is no 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)                                         AR20140009407





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ABCMR Record of Proceedings (cont)                                         AR20140009407



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