IN THE CASE OF:  	  

		BOARD DATE:  22 October 2015	  

		DOCKET NUMBER:  AR20150003394 


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 to a general discharge. 

2.  The applicant states at the time of his service he was suffering from a frontal lobe disorder caused by a brain lesion.  He has been on disability since his discharge and he was diagnosed with a brain tumor 2 years ago. 

3.  The applicant does not provide any 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 15 February 1978.  He completed training and he was awarded military occupational specialty 31V (Communications Systems Operator Mechanic). 

3.  He served in Germany from 14 July 1978 to on or about 17 September 1979.  While in Germany, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 12 March 1979, failing to go at the time prescribed to his appointed place of duty and willfully disobeying a lawful order 
* 9 April 1979, willfully disobeying a lawful order and returning two false DA Forms 689 (Sick Call Slip) with intent to deceive

4.  On 24 July 1979, court-martial charges were preferred against him for: 

* two specifications of being absent without leave (AWOL) from 
16 to 18 May 1979 and from 18 May 1979 to 4 July 1979
* one specification of escaping from lawful custody of the Schweinfurt Military Police on 18 May 1979
* one specification of willfully and wrongfully destroying property 
* one specification of willfully and wrongfully destroying a dog by shooting it
* one specification of escaping from correctional custody 

5.  On 16 August 1979, additional court-martial charges were preferred against the applicant for one specification of being AWOL from 10 to 15 August 1979. 

6.  On 16 August 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for offenses punishable under the UCMJ which authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, 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:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits,
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and state laws
* he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service
* he elected not to submit a statement on his own behalf

7.  On 20 August 1979, his immediate, intermediate, and senior commanders all recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.  Additionally, on 28 August 1979, a staff judge advocate reviewed the separation packet and found it legally sufficient. 

8.  On 28 August 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 20 September 1979, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he was discharged for the good of the service – in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 1 year, 5 months, and 11 days of creditable active service and he had multiple periods of lost time totaling 56 days.  

10.  There is no indication in his records he petitioned the Army Discharge Review Board for a review of his discharge action within that board's 15-year statute of limitations. 

11.  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 may be 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's record shows he 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.  He voluntarily, willingly, and in writing, requested 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.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence in the applicant's records and he provides none to support his contention that he was suffering from a frontal lobe disorder caused by a brain lesion or that his serious acts of indiscipline were caused by any medical condition.  

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  

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)                                         AR20150003394



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ABCMR Record of Proceedings (cont)                                         AR20150003394



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