Title: 2
Author: WoodsHN

ABCMR Proceedings (cont)                                                        AC97-10536

2.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.  He makes no statement.

3.  The applicant’s military records show he enlisted in the Regular Army on     19 July 1977 for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).  On 20 January 1980, he was honorably discharged for the purpose of immediate reenlistment on 21 January 1980 for 3 years.

4.  In October 1980, court-martial charges were preferred against the applicant for the offense of robbery.

5.  On 23 October 1980, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to make a statement in his own behalf.

6.  On 21 November 1980, the appropriate authority approved his request and directed he receive a discharge UOTHC.

7.  On 26 November 1980, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with a UOTHC discharge.  He had completed 3 years, 4 months and 8 days of creditable active service and had no lost time.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

9.  The VA, in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA determines that the early discharge amounted to a complete and unconditional separation from the service.
CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Although it would not be appropriate to change the records to show that the applicant was discharged honorably or under honorable conditions from the reenlistment commencing on 21 January 1980, it appears that his honorable discharge of 20 January 1980 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 20 January 1980 have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 20 January 1980.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                          
						    CHAIRPERSON