IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150015965 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: 21 March 2017 DOCKET NUMBER: AR20150015965 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: 21 March 2017 DOCKET NUMBER: AR20150015965 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 under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states, in effect: * he was 21 years of age with a wife and young child and his wife felt she was not getting the support she needed from him * he failed in getting family housing at Fort Carson; therefore, he had to fly back to his family, which caused him to lose his focus on being a Soldier * he continues to battle generalized anxiety disorder that he has had since childhood; this condition made him overly worry about his family * his condition, his doctor said, could have been managed sooner had he known about it * had he been able to focus more or know he needed to see a psychologist, he would have been a more dedicated Soldier 3. The applicant provides an email of an office visit with his civilian doctor, dated 28 August 2015. 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. After a period of service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 14 February 1989. He enlisted under his prior military occupational specialty (MOS) 12B (Combat Engineer), in the rank/grade of private (PV2)/E-2. His first duty station was Fort Carson, CO. 3. The following DA Forms 4187 (Personnel Action) shows the applicant's duty status: * on 2 August 1989, he was reported absent without leave (AWOL) on 5 July 1989 * on 8 August 1989, he was dropped from unit rolls (DFR) effective 4 August 1989 * on 21 August 1989, he was returned to military control after he surrendered to military authorities at Long Beach, CA on 14 August 1989 * on 21 August 1989, he was present for duty at the U.S. Army Personnel Confinement Facility, Fort Ord, CA 4. A DD Form 458 (Charge Sheet), dated 29 August 1989, shows court-martial charges were preferred against the applicant for being AWOL from on or about 5 July 1989 through on or about 14 August 1989 (a period of 41 days). 5. The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service on 29 August 1989, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. 6. In doing so, he acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge 7. The applicant's immediate and intermediate commanders recommended approval of his request on or about 30 April 1990 and forwarded his request to the approval authority. 8. The approval authority approved the applicant's request for discharge on 3 May 1990, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and his discharge with an under other than honorable conditions character of service. 9. The applicant was discharged on 18 May 1990. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms: * he was credited with completing 1 year and 2 days of net active service * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial * his service was characterized as under other than honorable conditions * he had lost time from 5 July 1989 through 13 August 1989 10. A review of his available record reveals a Report of Medical History and Report of Medical Examination, both dated 1 February 1989, which show the applicant had no medical conditions or mental health issues (an anxiety disorder) that were reported or discovered prior to his entrance on active duty. He was deemed acceptable for military service. Further, there is no additional available documentation that he was diagnosed with an anxiety disorder or suffered from any medical or mental health conditions prior to his discharge. 11. There is no evidence that indicates he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year time limit. 12. The applicant provides an email with subject: "Your Recent Office Visit," dated 28 August 2015 from a Dr. R.J.R., of Kaiser Permanente. The email inquired as to how the applicant was doing and if he had any further questions to contact the doctor's office. However, it did not address any medical conditions that the applicant may have seen the doctor for. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. DISCUSSION: 1. The applicant's record shows he was AWOL for approximately 41 days and surrendered to military authorities. Subsequent to his return to military control, court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge in order to avoid trial by court-martial and the potential punitive discharge. 2. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. His discharge accurately reflects his overall record of service. The characterization of service he received was commensurate with the reason for his discharge. 3. He contends his worry about his family and his battle with generalized anxiety disorder since his childhood caused his inability to focus. He further claims that if his condition would have been diagnosed earlier, it could have been properly managed and he would have been a much more dedicated Soldier. However, there is no evidence that shows he suffered from a medical or mental health condition prior to entrance into or discharge from military 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) AR20150015965 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015965 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2