IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150007563 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: 31 May 2016 DOCKET NUMBER: AR20150007563 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: 31 May 2016 DOCKET NUMBER: AR20150007563 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 honorable. 2. The applicant states he was involuntarily discharged without the opportunity to present evidence of his mental health condition. 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 29 April 1980. 3. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 25 July 1980 for failing to go to his appointed place of duty at the prescribed time. 4. A DD Form 458 (Charge Sheet) shows he was charged on 4 September 1980 with: * four specifications of failing to go to his appointed place of duty at the prescribed time on 20 July 1980, 21 July 1980, 22 July 1980, 8 August 1980, and 10 August 1980 * two specifications of absenting himself from his unit from 18 August 1980 through 25 August 1980 and from 27 August 1980 through 4 September 1980 * two specifications of failing to obey a lawful order on 5 August 1980 and 13 August 1980 * stealing a pair of sunglasses from the Fort Eustis Main Exchange on 1 August 1980 5. In an undated document, 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 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. His DA Form 3822-R (Report of Mental Status Evaluation), dated 12 August 1980, shows he did not have a significant mental illness; he was mentally responsible; he was able to distinguish right from wrong; he was able to adhere to the right; he had the mental capacity to understand and participate in board proceedings; and he met the retentions standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. He was cleared for any administrative action deemed appropriate by his command. 7. On 8 October 1980, he was discharged under other than honorable conditions. His DD Form 214 shows he completed 5 months and 10 days of total active service. 8. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 9. There is no evidence of record showing the applicant was diagnosed with a mental health condition at the time of his discharge nor has he provided any documentation showing he currently suffers from a mental health condition. The Army Review Boards Agency corresponded with the applicant on 11 June 2015, requesting a copy of any medical documentation he may have supporting his claim of a mental health condition. The applicant failed to 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 request for an upgrade of his discharge under other than honorable conditions was carefully considered. 2. His records show he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the prescribed time. He was later charged with four additional specifications of failing to go to his appointed place of duty, two specifications of absenting himself from his unit, two specifications of failing to obey a lawful order, and one charge of theft. These offenses are punishable under the UCMJ with a punitive discharge. 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, his rights were not fully protected throughout the separation process, or that he suffered from a mental health condition at the time of his discharge. Further, his discharge accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007563 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007563 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2