IN THE CASE OF: BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001498 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001498 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. IN THE CASE OF: BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001498 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 (UOTHC) to general under honorable conditions. 2. The applicant states: a. He was injured during a field training exercise while assigned to Fort Hood, TX. While convalescing from the injury, he decided to return home to Anniston, AL, to work through some issues with his wife. He contacted his unit of assignment while at home to request leave, but he was informed he was considered absent without leave (AWOL) and needed to return to the unit as soon as possible. Upon his return, he was informed he would be separated from the military. He was then transferred to Fort Sill, OK, where he was discharged. He did not understand at the time that his discharge was UOTHC. b. He was considered a good Soldier up until that point. He had just reenlisted and had been awarded numerous certificates of achievement. He was also suffering from anxiety and depression from the Gulf War and did not realize he could receive treatment. 3. The applicant provides: * Certificate of Achievement, dated 26 September 1990 * Certificate of Achievement, dated 15 June 1991 * Certificate of Commendation, undated * Army Commendation Medal (ARCOM) Certificate, dated 25 June 1991 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 29 June 1989. 3. He provided the following four certificates: a. A 4th Battalion, 70th Armor Regiment, Certificate of Achievement, dated 26 September 1990, states he showed selfless dedication and high morale, and his performance helped his company receive several commendable ratings for the Inspector General's annual inspection. b. A 1st Armored Division, U.S. Army Europe and 7th Army, Certificate of Achievement, dated 15 June 1991, states he was awarded the Bronze Tracked Vehicle Driving Award for noteworthy driving achievement, having driven a tracked vehicle in the 1st Armored Division for 6 months or 4,000 miles without an accident or traffic violation. c. A VII Corps, Saudi Arabia, Certificate of Commendation, undated, states he served with distinction with the VII Corps among the coalition forces fighting for the liberation of Kuwait in support of Operation Desert Storm. d. An ARCOM Certificate, dated 25 June 1991, states he was awarded the ARCOM for meritorious achievement while assigned to the 2nd Brigade, 1st Armored Division, from 17 January to 28 February 1991 during Operation Desert Storm. He contributed greatly to the brigade's preparation for combat operations and played a key role in the overwhelming success in the allied campaign against the Iraqi Armed Forces. 4. A DD Form 458 (Charge Sheet), dated 20 June 1994, shows he was charged with being AWOL from 13 May 1994 through 17 June 1994. 5. On 23 June 1994, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation  635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf. 6. On 16 August 1994, his immediate commander recommended approval of the applicant's request. He indicated the applicant had become disillusioned with the military and his retention was not in the best interest of the Army. 7. On 30 August 1994, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation  635-200, chapter 10, in lieu of trial by court-martial and directed the issuance of a discharge UOTHC. 8. His DD Form 214 shows he was discharged in lieu of trial by court-martial on 22 September1994 under the authority of Army Regulation 635-200, chapter 10. He completed 5 years, 1 month, and 19 days of active service during this period. His service was characterized as UOTHC. 9. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 10. There is no evidence of record nor did the applicant provide any showing he was diagnosed with anxiety or depression at the time of his discharge nor has he provided any documentation showing he currently suffers from a mental health condition. 11. The Army Review Boards Agency Medical Advisor/Psychologist provided an advisory opinion on 22 September 2017 wherein he stated: a. The applicant's available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition existed at the time of his military service. b. No behavioral health conditions were present at the time of his misconduct and no such conditions were mitigating for the misconduct. He met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). c. A review of the available documentation did not find evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the available information, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. 12. The applicant was provided a copy of the advisory opinion on 22 September 2017 and given an opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 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 sentence 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 3-7a 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: 1. The applicant's records show he was charged with being AWOL from 13 May 1994 through 17 June 1994, an offense punishable under the UCMJ with a punitive discharge. 2. Although he claims to have suffered from anxiety and depression, there is no evidence of record and he did not provide any showing he was diagnosed with anxiety or depression at the time of his discharge nor has he provided any documentation showing he currently suffers from a mental health condition. 3. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 4. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 5. According to the Army Review Boards Agency Medical Advisor/Psychologist, a review of the available documentation did not find evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the available information, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001498 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001498 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2