IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150009246 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: 7 April 2016 DOCKET NUMBER: AR20150009246 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: 7 April 2016 DOCKET NUMBER: AR20150009246 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 general under honorable conditions. 2. The applicant states: * he requests his second discharge be upgraded to general under honorable conditions to enable him to take advantage of some of the medical treatment at the Department of Veterans Affairs (VA) * he suffered a mental breakdown and was unable to perform his duties any longer, thus was absent without leave (AWOL) beginning in April 1992 * he previously served on active duty from February 1983 through February 1986 where he performed his duties meritoriously and was awarded two Army Achievement Medals and an Expert Infantryman Badge * his prior period of service was characterized as honorable * he has been struggling with major depression and is just now able to seek the needed help * treatment at the VA would be very beneficial in gaining a better understanding of the major depression which was the cause of his AWOL charge that led to his discharge in 1992 * at the time he was newly married with a 2-month old child and facing going to Iraq to engage in a chemical war * this second enlistment from 1991 through 1992 was too much for him to mentally handle * he just got so depressed he could not function * at the time he was living off post with his now ex-wife and he just could not go to work any longer * the depression that he still battles is the reason for his actions * he requests his previous military accomplishments be reviewed * he was a good Soldier but could not deal with all the stress and he melted down mentally * please forgive his actions * he needs a general discharge to access some medical and financial benefits that he needs * without help from the VA he fears he will not be able to maintain his standard of living and continue to seek care for his serious emotional issues * he is unable to print any medical documents at this time and he is not near the VA hospital * please take the time to verify his claims of mental illness, mainly major depression, but with that follow many ailments * his tax information will show he has not been able to work and keep employment for over 15 years * he apologizes and states he is working on getting better 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 initially enlisted in the Regular Army on 16 February 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 14 February 1986 due to reaching his expiration term of service and transferred to the U.S. Army Reserve Control Group (Reinforcement). He was credited with 2 years, 11 months, and 27 days of net active service. On 15 February 1989 he was honorably discharged from the Ready Reserve. 3. On 12 March 1991, he again enlisted in the Regular Army. 4. His records contain two letters from his company commander addressed to his wife. The first letter, dated 28 October 1991, states the applicant had been AWOL since 22 October 1991. It informed her that his absence could result in a trial by court-martial with loss of pay and allowances and confinement or dismissal with a dishonorable or bad conduct discharge. She was urged to tell him to return to military control immediately. The second undated letter informs his wife that he was dropped from the Army rolls on 21 November 1991 and was classified as a deserter from the Army. Civilian and military law enforcement agencies were notified of his status and requested to apprehend him. 5. A DD Form 458 (Charge Sheet), dated 26 February 1992, shows he was charged with being AWOL from 7 to 14 October 1991 and again from 22 October 1991 t0 21 February 1992. 6. On 26 February 1992, 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. 7. His records contain a memorandum signed on 25 February 1992 wherein he indicated he did not desire a separation medical examination. His available military records contain no reference to a diagnosis of or treatment for depression and he has not provided any such documents. 8. On 8 April 1992, the Chief, Criminal Law Division, Fort Sill, OK, reviewed the applicant’s request for discharge for the good of the service and had no legal objections to the further processing of the request in accordance with the unit commander’s recommendations. On 8 April 1992, the approval authority approved the discharge and directed an under other than honorable conditions discharge to be furnished. 9. On 30 April 1992, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial. His DD Form 214 shows he completed 2 years, 11 months, and 27 days of net active service this period. 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 3-7b 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 was AWOL from 7 to 14 October 1991 and again from 22 October 1991 to 21 February 1992. These offenses are punishable under the UCMJ with a punitive discharge. 3. Although he claims he suffered from depression that was the catalyst for his periods of AWOL, there is no evidence of record and the applicant has not provided any corroborating evidence that shows he was diagnosed with depression for which he sought treatment at the time of his discharge. 4. 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. 5. 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. Further, his discharge accurately reflects his overall record of service. 6. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits. Each case is individually considered based on the evidence of record and the evidence presented. 7. The applicant is advised to make contact with his local VA representative in order to determine his eligibility for benefits based on his prior honorable service from 16 February 1983 through 14 February 1986. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009246 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009246 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2