IN THE CASE OF:  	  

		BOARD DATE:  23 June 2015	  

		DOCKET NUMBER:  AR20140018476 


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 honorable.

2.  The applicant states that after he was discharged he was diagnosed with bipolar disorder, schizoaffective disorder, anxiety disorder, and post-traumatic stress disorder (PTSD) resulting from childhood abuse and trauma.  These are the reasons he could not perform his military duties.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 30 August 1971.  He was assigned for basic combat training (BCT) to the 12th Battalion, 5th Training Brigade, Fort Knox, KY.

3.  He was reported as absent without leave (AWOL) from his assigned unit from 10 to 17 October 1971.

4.  On 18 October 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 10 to 17 October 1971.

5.  On 22 October 1971, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.  On 22 November 1971, he was apprehended and returned to military control at Fort Knox.  

6.  On 11 January 1972, he was convicted by a special court-martial of one specification each of:

* being AWOL from 22 October to 21 November 1971
* breaching the restraint imposed upon him on 22 October 1971 while undergoing the punishment of correctional custody

7.  He was sentenced to forfeiture of $150 per month for 4 months and confinement for 4 months.  He was confined at the U.S. Army Correctional Training Facility, Fort Riley, KS.  

8.  On 19 April 1972, he was assigned for advanced individual training (AIT) to the 2nd Battalion, 1st AIT Brigade, Fort Leonard Wood, MO.

9.  On 22 May 1972, he was reported as AWOL from his assigned unit and he was DFR as a deserter.  

10.  On 2 July 1972, he was apprehended and returned to military control.  He was assigned to the U.S. Army Personnel Control Facility (PCF), Fort Knox.

11.  On 24 July 1972, he was reported as AWOL from his assigned unit and he was DFR as a deserter.  On 29 August 1972, he was apprehended and returned to military control at Fort Knox.

12.  On 13 September 1972, court-martial charges were preferred against him for one specification each of being AWOL from:

* 22 May to 1 July 1972
* 24 July to 27 August 1972

13.  On 15 September 1972, he consulted with legal counsel who advised him 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 of the procedures and rights that were available to him.

14.  On 15 September 1972, 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, he acknowledged that he had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it.  

15.  He further acknowledged that he understood if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood that as a result of such a discharge, he may be ineligible for many or all Amy benefits, many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both State and Federal laws.  He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

16.  In a statement he submitted in his own behalf, he stated, in part:

	a.  He thought the Army was the place for him but while in BCT he knew he had made a mistake and he wasn't going to make it.  He just had to get away and left thinking it was the only way.  He stayed gone for 7 days, found out his girlfriend was pregnant, didn't know what to do, so he went back.  He was given an Article 15 and punished by being placed in correctional custody for 20 days but he only stayed 1 night.  

	b.  He went home for 30 days and he and his girlfriend tried to find the courage to tell her mother she was pregnant but they didn’t succeed.  He was picked up by the police and brought back to his unit, then placed in the stockade. He was court-martialed and given 4 months confinement.  When he was given a pass to go home he went home and got married and went back to his unit.  He finally got stationed at Fort Leonard Wood, MO, and was going to try again.  He was at his next duty station when his wife started having problems with her family so he left again.  He was picked up again and taken to Fort Knox.

	c.  Things got worse for his wife so he left the PCF and went home.  He stayed for 32 days and was picked up again.  Now he was trying to get out of the Army because he couldn't adjust to the Army and had problems at home to take care of.  He was an E-1 and he had one child and another one on the way.  He had a good job waiting for him back home and he thought he should be discharged for the good of the Army.

17.  On 18 September 1972, his immediate commander recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate.  His commander stated, in part, the applicant's conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  Based on his previous record, punishment can be expected to have minimal rehabilitative effect.  There did not appear to be any reasonable ground to believe that the applicant is or was at the time of his misconduct mentally defective, deranged, or abnormal (emphasis added).   

18.  On 18 September 1972, his senior commander recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate.

19.  On 20 September 1972, the separation authority approved the applicant's request for a discharge and directed the issuance of an Undesirable Discharge Certificate.  

20.  On 23 September 1972, he was reported as AWOL from his assigned unit.  On 27 September 1972, he was discharged while in an AWOL status.

21.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with an under other than honorable conditions characterization of service.  He completed 4 months and 4 days of net active service and had 269 days of lost time due to being AWOL and/or in confinement. 

22.  On 10 February 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

23.  His available record does not show and he has not provided any evidence that shows he was diagnosed with any mental disorder/condition while serving on active duty.  His record does not show and he has not provided any evidence that shows he requested assistance for dealing with any family/marital problems/issues while serving on active duty.  
24.  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 included 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.  An under other than honorable conditions discharge was normally considered appropriate.

25.  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.

26.  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 evidence of record confirms the applicant was charged with the commission of offenses 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.

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His available record does not show and he has not provided any evidence that shows he was diagnosed with any mental disorder/condition while serving on active duty or with any service-related PTSD/mental condition.  He stated himself that he simply could not adjust to the Army, repeatedly went AWOL to deal with family problems, and he wanted to be discharged because he had a good job waiting for him.  

4.  The evidence of record confirms the applicant received NJP for being AWOL, was convicted by a special court-martial for being AWOL on two occasions, and then went AWOL on three additional occasions.  He had just over 4 months of net active service, had almost 9 months of lost time due to being AWOL and/or in confinement, and was in an AWOL status at the time of his discharge.

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting him 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)                                         AR20140018476





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ABCMR Record of Proceedings (cont)                                         AR20140018476



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