IN THE CASE OF: 	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140014238


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, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, his discharge should be upgraded.  He received an injury due to faulty government equipment and received 42 stitches in his forehead which caused blackouts and resulted in his period of absent without leave (AWOL) service.  He continues to suffer from headaches and depression.   

3.  The applicant states he provides medical records from the Rader Medical Clinic at Fort Myer, Virginia and Lake Shore Mental Health in Knoxville, Kentucky; however, these documents are not present.    

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 11 February 1993.  He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On or about 6 September 1994, he was reported as AWOL from his unit, Company B, 3rd United States Infantry Regiment (The Old Guard), Fort Myer, Virginia.  On or about 5 October 1994, he was dropped from the rolls of the Army (DFR).  On or about 13 July 1995, he surrendered to military authorities and was returned to military control at Fort Knox, Kentucky.  

4.  On 18 July 1995, court-martial charges were preferred against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, for being AWOL from on or about 6 September 1994 to on or about 13 July 1995.  
5.  On 18 July 1995, after consulting with legal counsel, he 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 Department of Veterans Affairs (VA), 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 of which he did elect to do so.  He provided a 3-page hand-written statement, dated 17 July 1995, wherein he described his head injury and summarized the circumstances that led to his eventual period of AWOL service.
   
6.  On 29 August 1995, the separation authority approved his request for discharge and directed reduction to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  On 19 September 1995, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he has lost time from 6 September 1994 to 12 July 1995. 

7.  The applicant states he provided his medical records the Rader Medical Clinic at Fort Myer, Virginia and Lake Shore Mental Health in Knoxville, Kentucky; however, these documents are not present.  

8.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge on 25 October 2002.  However, they closed his case without action because his military records were unavailable and without them, they could not  conduct a fair, impartial, and equitable review of his case.    

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

10.  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.

11.  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 request for upgrade of his under other than honorable conditions discharge has been carefully considered; however, there is insufficient evidence to support his request.
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.  He contends his period of AWOL service resulted from a head injury, due to faulty government equipment, which resulted in medical treatment and was a factor in the misconduct that led to his discharge.  He contends his discharge should be upgraded because of that.  However, there is no evidence that his injury was a mitigating factor in his misconduct.  

5.  Based on the foregoing, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20140014238



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