IN THE CASE OF:  

		BOARD DATE:  15 January 2015	  

		DOCKET NUMBER:  AR20140009599 


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, that his discharge under other than honorable conditions be upgraded to a more favorable discharge that will make him eligible for veteran’s benefits. 

2.  The applicant states, in effect, that he suffered from post-traumatic stress disorder (PTSD) prior to entering the service because his father suffered from PTSD from his service in Vietnam and was an alcoholic and abusive father and husband.  He was unaware that he suffered from PTSD at the time and now realizes that he used marijuana to self-medicate himself.  He never used it on duty.  He was an excellent and highly-decorated Soldier who deserves a review of his entire record to determine the facts and circumstances of his case as he believes he deserves some compensation for his service.  

3.  The applicant provides a two-page character statement from his aunt, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a diagnosis from a psychiatric clinic, copies of his entrance physical/medical examination, and a copy of his Initial PTSD Disability Questionaire from the VA.

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 20 July 1987 for a period of      3 years and training as a Power Generator Equipment Repairer.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Belvoir, Virginia and was transferred to Korea on 6 January 1988.  He was advanced to the pay grade of E-4 on 1 December 1988 and married a local National on 15 December 1989.

3.  He completed his tour in Korea on 13 January 1990 and was transferred to Fort Riley, Kansas for assignment to a signal company.  On 20 January 1990, he reenlisted for a period of 4 years.

4.  On 13 September 1990, the applicant was reduced to the pay grade of E-3; however, the record is silent as to the reason for his reduction in grade.  He deployed to Southwest Asia during the period 22 December 1990 to 14 May 1991 and was advanced to the pay grade of E-4 on 1 March 1991.

5.  On 12 May 1992, he was transferred to Germany on a “with dependents tour” for assignment to a signal company.  

6.  On 3 December 1993, the applicant underwent a medical physical examination for the purpose of separation and was deemed qualified for administrative separation.

7.  On 12 January 1994, he was again reduced to the pay grade of E-3 and again, the record is silent as to the reason for his reduction in grade.

8.  The complete facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Winston-Salem, North Carolina in December 1994.  However, the applicant's record contains a DD Form 214 that shows he was discharged under other than honorable conditions on 13 June 1994 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 (UOTHC) discharge.  He served 6 years, 10 months, and 24 days of active service.
9.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  The letter provided by the applicant from the psychiatric clinic is dated in September 2011 and indicates that the applicant is diagnosed with PTSD and chronic major depression and was prescribed a drug treatment plan and cognitive behavioral psychotherapy for 20 months every 6 weeks. 

11.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  A UOTHC discharge is normally considered appropriate.

12.  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.

13.  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 complete facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (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.  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 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 must be presumed his discharge accurately reflects his overall record of service.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, since the facts and circumstances are not present and the applicant has not provided them, it must be presumed that his offense was more serious than the simple one-time use of marijuana.  The Board will exercise caution in weighing evidence of mitigation in which serious misconduct precipitated a discharge.  The severity of the charges is unknown in this case in order to evaluate it against the possible contributing factor of PTSD.   As such, it appears his service simply did not rise to the level of an honorable or a general discharge.

4.  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 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)                                         AR20140009599





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ABCMR Record of Proceedings (cont)                                         AR20140009599



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