BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010029 


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 he received a dishonorable discharge because of his mental illness that was not determined by physicians at the time.  He should have been diagnosed with panic attack disorders.  This caused him many problems during his active service.  He was diagnosed with panic attack disorder after his discharge.  But back in 1987, there was not much information in the medical community to support his illness.  He could not possibly do his daily duties with such daily attacks. 

3.  The applicant does not provide any evidence. 

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 records show he enlisted in the Regular Army on 12 August 1982 and he held military occupational specialty 71L (Administrative Specialist).  He was advanced to specialist/E-4 in November 1983 and he reenlisted in October 1985.  He was assigned to 5th Battalion, 32nd Armor, Fort Stewart, GA.

3.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Grenade Bar, Army Achievement Medal (3rd Oak Leaf Cluster), and Good Conduct Medal.

4.  It appears that on 5 May 1987 he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for an unknown offense.  His Article 15 is not available for review but he was reduced from E-4 to private/E-2 on that date.  

5.  On 22 July 1987, he departed his unit in an absent without leave (AWOL) status and on 21 August 1987, he was dropped from the rolls as a deserter.   He ultimately returned to military control on 26 October 1987.  

6.  Following his return from AWOL, he executed a statement on 3 November 1987 acknowledging that he understood he was not required to undertake a medical examination for separation but if he elected to do so, his medical records would be reviewed by a physician.  He declined a separation medical examination. 

7.  On 4 November 1987, court-martial charges were preferred against the applicant for one specification of AWOL from 22 July 1987 to 26 October 1987.  His chain of command recommended trial by a court-martial empowered to impose a bad conduct discharge or a dishonorable discharge. 

8.  On 5 November 1987, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if his discharge request was approved, 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; 

	d.  he understood that under no circumstances did he desire further rehabilitation or to perform further military service; and 

	e.  he elected not to submit a statement on his own behalf.  

9.  His chain of command, including the immediate (company) and intermediate (battalion) commanders, recommended approval of the discharge action with an under other than honorable conditions characterization of service. 

10.  Consistent with the chain of command's recommendations, on 29 November 1987, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 15 January 1988, the applicant was discharged accordingly.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 5 years and 2 months of creditable active service and he had lost time from 22 July to 25 October 1987.

12.  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. 

13.  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 discharge under other than honorable conditions 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.  It 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.

14.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he 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.  He 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.  

2.  The available evidence clearly shows the applicant violated the UCMJ and he was given a choice.  He consulted with counsel and he was advised of his rights. He did not receive a dishonorable discharge.  Such characterization of service may be only be adjudged by a general court-martial.  He chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge.  He could have elected trial by a court-martial if he believed he was innocent of the charges or if there were mitigating circumstances for the misconduct.  

3.  There is no evidence in his records and he failed to provide any to support his contention that he suffered from a mental condition at the time of his military service.  He was offered a separation physical but he declined to undergo one.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his discharge to either 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)                                         AR20140010029





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ABCMR Record of Proceedings (cont)                                         AR20140010029



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