IN THE CASE OF:  
  

		BOARD DATE:  26 March 2015	  

		DOCKET NUMBER:  AR20140012139 


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 needs his discharge upgraded so he may get help from the government for his mental illness and other health issues that he has had since his combat action.  He was and he remains now mentally ill.  His health issues are too many to mention.  He served his country and he was willing to give his life in the service of his country.  However, when he returned from combat, he needed help and support but there was none.  He has tried to better himself since he has been in prison and he is stable and on medications.  He is currently trying to become an ordained minister and is studying theology.  He is working on getting a bachelor’s degree in theology with an ultimate goal of receiving a doctorate degree in theology.  All his post-traumatic stress disorder and mental and physical issues are documented with the Social Security Administration.  

3.  The applicant provides:

* college transcripts
* Multiple letters of congratulations for completion of a correspondence course
* Multiple certificates related to Biblical studies 
* Multiple certificates of achievement related to Biblical studies
* Multiple certificates of merit
 
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 18 May 1989 and he held military occupational specialty 63E (M-1 Tank System Mechanic).  He served in Southwest Asia from 2 September 1990 to 30 March 1991. 

3.  He was awarded or authorized the Army Achievement Medal, National Defense Service Medal, Southwest Asia Service Medal with 2 bronze service stars, Army Service Ribbon, Kuwait Liberation Medal, Expert Marksmanship Qualification Badge with Pistol Bar, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  On 25 June 1992, he departed his Fort Benning unit in an absent without leave (AWOL) status, and on 25 July 1992, he was dropped from the rolls of his unit as a deserter.  He was apprehended by civil authorities in Clovis, New Mexico and returned to military control on 9 March 1995.  

5.  Following his return from desertion, he was assigned to B Battery, Personnel and Support Battalion, U.S. Army Field Artillery Center, Fort Sill, OK, for processing. 

6.  On 17 March 1995, court-martial charges were preferred against him for one specification of AWOL from 25 June 1992 to 9 March 1995.

7.  On 17 March 1995, 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested 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 for discharge, he indicated/acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* he understood if his request for discharge was accepted, he could be discharged under other than honorable conditions
* if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement in his own behalf and declined a physical evaluation prior to separation

8.  On 27 April 1995, his immediate commander recommended approval with the issuance of an under other than honorable conditions characterization of service. He opined the applicant became disillusioned with the military and his retention was not in the best interest of the Army. 

9.  On 3 May 1995, consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by a court-martial.  He directed the applicant be reduced to the lowest enlisted grade (if applicable) and his service be characterized as under other than honorable conditions.  On 22 May 1995, the applicant was accordingly discharged.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of private/E-1 with a character of service of under other than honorable conditions.  This form further shows he completed 5 years and 11 months of active service with 988 days (2 years, 8 months, and 13 days) of time lost from 25 June 1992 to 9 March 1995.  
11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

12.  He provides multiple post-service college transcripts, letters of congratulations on completion of a correspondence course, and multiple certificates of achievement and/or merit related to biblical studies.

13.  His medical records are not available for review with this case.  He provides no medical records (such as a separation physical, mental status evaluation, or other medical documents) with his application. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  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.

	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.  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.  The applicant voluntarily, willingly, and in writing requested a 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.  Furthermore, his discharge accurately reflects his overall record of service.

2.  The applicant was AWOL and a deserter.  Upon return to military authorities not only did he admit to his AWOL, he requested voluntary discharge to avoid trial by a court-martial.  He could have elected trial by a court-martial if he believed he was innocent of the charges.  Likewise, he could have at least elected to undergo a separation physical if he really had stress that caused him to go AWOL.

3.  He provides no documented evidence to show he had PTSD then or now.  Nowhere in his records is there evidence that his extensive history of AWOL (988 days) was due to a behavioral/mental health problem.  

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.  This misconduct rendered his service unsatisfactory.  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)                                         AR20140012139





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ABCMR Record of Proceedings (cont)                                         AR20140012139



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