BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011497 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 BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011497 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. BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011497 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, in effect, * he was denied religious and mental health/medical assistance * he was treated unfairly and punished for it, which caused him to leave the Army * he has been a productive citizen for 23 years * he has two children * he was young and dumb * he is a good person and loved the Army 3. The applicant provides a checklist of issues/reasons why his discharge should be upgraded. 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 was born on 4 April 1969. He enlisted in the Regular Army on 24 November 1987 for a period of 4 years. He completed his training and was awarded military occupational specialty 11M (fighting vehicle infantryman). 3. His records show he was absent without leave (AWOL) on 4-5 January 1988. 4. He was AWOL again on 15 August 1988. He was apprehended by civilian authorities and returned to military control on 19 June 1991. 5. On 12 July 1991, he underwent a mental status evaluation and was diagnosed with mixed personality disorder. The psychiatrist stated: * he was hospitalized on 5 July 1991 in the psychiatric ward * he has a long history of poor coping skills * his desertion from the military was further evidence of this longstanding problem * his admission to the hospital was precipitated by evidence of his inability to adapt to the rigors of life in the personnel confinement facility * he is mentally responsible for his behavior * he can distinguish right from wrong * he possesses sufficient mental capacity to understand and cooperate intelligently as a respondent in any administrative or judicial proceedings which might involve him * he was psychiatrically cleared for any administrative action deemed appropriate by his command 6. On 15 July 1991, charges were preferred against him for the AWOL period. 7. On 16 July 1991, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10. He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration (should read Department of Veterans Affairs), he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected not to make a statement in his own behalf. 8. On 5 September 1991, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge UOTHC. 9. On 18 September 1991, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 8 months and 15 days of creditable active service with 1,102 days of lost time. His service was characterized as UOTHC. His DD Form 214 shows he was awarded the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars. 10. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. He provided a checklist indicating the following issues/reasons why his discharge should be upgraded: * clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge * under current standards, he would not have received the type of discharge he did * his average conduct and efficiency ratings/behavior/proficiency marks were good * he received personal awards and decorations * his record of promotions shows he was generally a good service member * he was so close to finishing his tour of duty that is was unfair to give him a bad discharge * he has been a good citizen since discharge * his record of nonjudicial punishments (NJPs) and court-martial convictions indicate only isolated or minor offenses * his record of AWOL indicates only minor or isolated offenses * his ability to serve was impaired by his youth and immaturity and his deprived childhood background * he suffered religious discrimination and that impaired his ability to serve * certain other problems impaired his ability to serve * the punishment he received was too severe compared to today's standards * the punishment he received at discharge was too harsh, it was much worse than most people received for the same offense * his command abused its authority when it decided to discharge him and decided to give him a bad conduct discharge * he had applied or tried to apply for a compassionate reassignment, but was unfairly denied and told to forget it * his enlistment option was not satisfied or waived * he should have gotten a medical discharge because he was not medically qualified to continue to serve * his discharge was improper because the command did not follow the discharge regulation 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 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. 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 contends he was suffering from mental health issues. However, the medical evidence of record shows he underwent a mental status evaluation prior to his discharge and he was psychiatrically cleared for any administrative action deemed appropriate by his command. Although he was diagnosed with mixed personality disorder, he was found to be: * mentally responsible for his behavior * able to distinguish right from wrong 2. Although he contends his ability to serve was impaired by his youth and immaturity, he was 18 years of age when he enlisted in the Regular Army and he successfully completed training. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 3. His contention that he has been a productive citizen for 23 years was noted. However, good post-service conduct alone is normally not a basis for upgrading a discharge. 4. He contends the punishment he received was too severe compared to today's standards. However, under current standards, a Soldier discharged for the good of the service in lieu of trial by court-martial would normally receive a discharge UOTHC. 5. The evidence of record does not support his contention that he was so close to finishing his tour of duty that it was unfair to give him a bad discharge. The evidence shows he only completed 8 months and 15 days of a 4-year enlistment. 6. Although he contends his record of NJPs and court-martial convictions indicate only isolated or minor offenses, there is no evidence of NJPs or court-martial convictions in the available records. 7. The evidence of record does not support his contention that his record of AWOL was a minor offense. He was AWOL for 1,102 days. 8. Although he contends he suffered religious discrimination, there is no evidence and he provided no evidence showing he was the victim of religious discrimination. 9. He contends his command abused its authority when it decided to discharge him and decided to give him a bad conduct discharge. However, the evidence of record shows he voluntarily requested discharge and he received a discharge UOTHC, not a bad conduct discharge. 10. His contention that he should have received a medical discharge because he was not medically qualified to continue to serve was noted. However, there is no evidence showing he was unable to perform his military duties satisfactorily due to a medical condition. 11. Although he contends his discharge was improper because the command did not follow the discharge regulation, his voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with the regulation. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 12. The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case. 13. His brief record of service included 1,102 days of lost time. As a result, his record of service was not satisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011497 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011497 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2