IN THE CASE OF:  	  

		BOARD DATE:  2 April 2015	

		DOCKET NUMBER:  AR20140014020 


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 his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.  

2.  The applicant states, in effect, that he was mentally unstable and didn't make appropriate decisions and his leadership was unable to assist him.  He has sought treatment to address his substance abuse and major depression issues.  He is stable and has been clean and sober since 1998 and wants to address his past actions.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from Pathways to Housing Pennsylvania (PA), dated 5 August 2014.  

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 10 March 1982.  Upon completion of initial entry training, he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E5.

3.  On 11 August 1987, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on or about 3 August 1987. 
 
4.  On or about 10 November 1987, he was reported as absent without leave (AWOL) from his unit, Battery C, 3d Battalion, 8th Field Artillery Regiment, Fort Bragg, North Carolina.  On or about 18 August 1988, he surrendered to military authorities and returned to military control at Fort Dix, New Jersey.    

5.  On 18 August 1988, court-martial charges were preferred against him for being AWOL from on or about 10 November 1987 to on or about 18 August 1988.   

6.  On 7 September 1988, he consulted with legal counsel and voluntarily 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 acknowledged:

   a.  He understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  

   b.  He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  
   
   c.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  
   
   d.  He was advised he could submit any statements he desired in his own behalf.  He did elect to submit statements; however they are not included in his records. 

7.  On 6 October 1988, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  

8.  On 9 November 1988, he was reduced to the lowest enlisted grade and discharged accordingly.  His DD Form 214 confirms he completed 5 years,       10 months, and 18 days of net active service.  His DD Form 214 also indicates he had lost time from 10 November 1987 to 17 August 1988. 

9.  There is no evidence in his records nor does the applicant provide any evidence that shows he suffered from mental stability issues.     

10.  On 6 August 1999, the Army Discharge Review Board determined the applicant's reason for discharge and characterization of service were both proper and equitable and denied his request for a discharge upgrade.

11.  The applicant provides a letter, dated 5 August 2014, from Pathways to Housing PA that states he is a weekly participant.  They provide housing support and intensive case management services for the homeless and those who suffer from a severe and persistent mental illness.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation 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.  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.

   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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade to a general, under honorable conditions discharge has been carefully considered.

2.  His records show 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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  His contention that he was mentally unstable and didn't make appropriate decisions and that his leadership was unable to assist is noted.  However, there is no evidence in his records nor does the applicant provide any evidence that his mental stability caused his record of indiscipline or that his leadership failed to assist.  There is a presumption of regularity in the conduct of government affairs.  
5.  The Board applauds the applicant's current status of sobriety, seeking mental treatment and his desire to address his past actions, however based on his record of indiscipline, his overall record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and does not support an upgrade of the issuance of a general, under honorable conditions discharge.   
   
6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100020977



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ABCMR Record of Proceedings (cont)                                         AR20140014020



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