IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080009351 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to fully honorable.

2.  The applicant states he went absent without leave (AWOL) because he was suffering from combat stress and didn’t know how to cope with being around civilians or adapt to his new environment after arriving back to the United States.  The applicant asked that the Board waive the statute of limitations in his case since he has been diagnosed with a mental disorder.

3.  The applicant provides his separation document (DD Form 214).

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’s military records show that he enlisted in the United States Army Reserve in October 1979, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-4.  On 4 January 1986 the applicant was honorably discharged at the expiration of his term of service.

3.  The applicant enlisted in the Regular Army on 30 March 1988.  He served in Southwest Asia during Operation Desert Shield/Storm from 8 September 1990 to 31 March 1991.  

4.  In an undated memorandum, the applicant voluntarily declared that he was AWOL from 3 May to 20 June 1991.  The applicant stated that “I make this admission for administrative purposes only so I may process out of the Army and realize in doing so I may be given an under other than honorable conditions discharge.”

5.  The applicant’s discharge packet is not contained in his records.  However, on 13 September 1991 the applicant was discharged UOTHC under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial.

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant’s discharge packet is not contained in his records, a presumption of administrative regularity is applied, that what the Army did was correct.

2.  The applicant has not submitted any documentation to show that he has been diagnosed with a mental disorder.  However, even if he had it would not form the basis for upgrading his discharge.  Being diagnosed with a mental problem long after a Soldier is discharged does not indicate that the Soldier suffered from the mental problem while he was on active duty.

3.  In view of the foregoing, there is no basis for granting the applicant’s request.
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)                                         AR20080009351



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ABCMR Record of Proceedings (cont)                                         AR20080009351



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