BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160002708 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: 17 August 2017 DOCKET NUMBER: AR20160002708 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: 17 August 2017 DOCKET NUMBER: AR20160002708 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 his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states that during the Gulf War, he was stationed in Iraq as a combat engineer. While there, his platoon sergeant ordered him to bury body parts for at least five and very possibly more that were killed by an air strike. He contends that as a result, he is having nightmares and is suffering from sleep disturbances. He sought help from the Army at the time, but he was denied the help he needed. His problems resulted in personality conflict with his superiors as they did not help a good Soldier. As a result of these problems, and in an attempt to cope, he developed problems with alcohol abuse. He sought help from the Department of Veterans Affairs (VA), but because of the character of his discharge, he cannot get the help he needs. 3. The applicant provides copies of his DA Form 2-1 (Personnel Qualification Record) and DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 11 April 1989. He served in Southwest Asia in support of Operations Desert Shield and Desert Storm from 22 December 1990 to 10 May 1991. 3. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the offenses indicated: * on 26 July 1991, for being absent without leave (AWOL) during the period 22-23 July 1991 * on 28 August 1991, for being AWOL during the period 13-15 August 1991 4. The applicant's DA Form 20 shows he was AWOL from 30 September through 18 October 1991 and from 20 October 1991 through 15 January 1992. 5. Court-martial charges were preferred against the applicant on 21 January 1992, for being AWOL from 20 October 1991 to 15 January 1992. 6. The applicant, after consulting with legal counsel, voluntarily requested discharge 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, due to the charges preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge. In doing so, he acknowledged he was guilty of at least one of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge. a. He was advised of: * the nature of his rights under the UCMJ * the elements of the offenses with which he was charged * the possible defenses which appeared to be available and the maximum permissible punishment if found guilty b. He acknowledged that: * he had not been subjected to any coercion whatsoever by any person with respect to his request for discharge * he was advised of the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the 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 discharge c. He elected not to submit a statement in his own behalf and declined a physical evaluation prior to separation. 7. The separation authority approved the applicant's request for discharge on 1 April 1992 and directed the issuance of an under other than honorable conditions characterization of service. 8. The applicant was discharged on 15 April 1992. His DD Form 214 confirms his service was characterized as under other than honorable conditions, and he had accrued 111 days of lost time. 9. There is no evidence in the applicant's records that shows he sought assistance through Army support channels for his problems after deployment. 10. There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 11. A letter from the Army Review Boards Agency (ARBA) Case Management Division, dated 14 March 2017, informed the applicant that medical records and/or other evidence supporting his contention were necessary for consideration of his request. The applicant failed to respond. 12. During the processing of this case, a medical advisory opinion was obtained from the ARBA's Medical Advisor/Psychologist who states a review of the applicant's electronic medical records and VA records revealed no evidence of a mental health condition that bears on the character of his discharge. A mitigating nexus between the applicant's misconduct and his mental health was not discovered. 13. The medical advisory opinion was forwarded to the applicant to allow him the opportunity to provide additional evidence, comments, or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 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. 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION: 1. The available evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial. 2. The evidence further shows his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 3. His record of indiscipline includes NJP on two occasions for being AWOL, court-martial charges for being AWOL, and 111 days of lost time. The separation authority determined his overall record of service did not support the issuance of an honorable or general discharge at the time. 4. The applicant contends he was suffering from certain mental health issues after deployment; however, there is no evidence in the available records that suggests he was suffering from a behavioral health condition at the time of his active duty service that warranted special consideration. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002708 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002708 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2