IN THE CASE OF:
BOARD DATE: 6 October 2015
DOCKET NUMBER: AR20150001437
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 discharge under other than honorable conditions to a general discharge under honorable conditions.
2. The applicant states:
* he was having mental and emotional issues after being run over by a 2 1/2-ton military vehicle
* he had a hard time recovering and when he heard his dad had a heart attack he immediately went to his mother's side
* he didn't think to use proper channels because of the emotional issues he was having after being hit
* he was considered absent without leave (AWOL)
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 11 January 1977 for a period of 4 years. He completed his training and was awarded military occupational specialty 13B (cannon crewman).
3. Between August 1977 and April 1978, nonjudicial punishment (NJP) was imposed against him on three occasions for:
* being AWOL from 15 August 1977 to 20 August 1977
* disobeying a lawful command
* failing to go at the time prescribed to his appointed place of duty (four specifications)
4. Records show:
* he was AWOL from 5 May 1978 to 16 July 1978 and charges were preferred against him for the AWOL period (undated memorandum for record)
* trial by special court-martial was recommended
5. His records contain a personal statement, dated 9 August 1978, which states:
* he was intentionally AWOL on 5 May 1978 because of financial, personal, and family problems
* he requested the chapter 10 discharge for personal reasons (his request for discharge is not available for review)
6. His records also contain an undated mental status evaluation which shows:
* no significant mental illness was noted
* he was mentally responsible
* he was able to distinguish right from wrong
* he was able to adhere to the right
7. His records are void of the specific facts and circumstances surrounding his final discharge action. However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 18 September 1978 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. He completed 1 year, 5 months, and 22 days of creditable active service with 78 days of lost time. His service was characterized as under other than honorable conditions.
8. There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
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 3-7b 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 contends he was suffering from mental and emotional issues after being hit by a 2 1/2-ton military vehicle that led to poor choices and his discharge. However, the medical evidence of record shows he underwent a mental status evaluation prior to his discharge. No significant mental illness was noted and he was found to be:
* mentally responsible
* able to distinguish right from wrong
* able to adhere to the right
2. His records are void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice 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 is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, in the absence of evidence showing otherwise, it must be presumed that his final discharge accurately reflects his overall record of service during the period under review.
3. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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) AR20150001437
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