IN THE CASE OF: BOARD DATE: 26 May 2011 DOCKET NUMBER: AR20100026048 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 discharge under other than honorable conditions be changed to reflect that he was honorably discharged by reason of medical disability. 2. The applicant states that it is unjust for him to have to suffer the effects of a discharge under other than honorable conditions considering his medical condition of chronic obstructive pulmonary disease which requires him to be on oxygen 24 hours a day, 7 days a week. 3. The applicant provides copies of his medical records. 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 in St. Louis, Missouri, on 19 June 1979 for a period of 3 years, training as a cavalry scout, and assignment to Fort Campbell, Kentucky. He completed one-station unit training at Fort Knox, Kentucky, and was transferred to Fort Campbell on 8 October 1979. 3. On 6 March 1980, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 11 January to 14 February 1980. 4. On 27 May 1980, he again went AWOL and remained absent in desertion until he was apprehended by civil authorities in East Prairie, Missouri, on 21 July 1980. He was returned to military control at Fort Sill, Oklahoma, where charges were preferred against him for the AWOL charge on 7 August 1980. 5. On 8 August 1980 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial. He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge. He further declined to submit a statement or explanation in his own behalf and he declined a separation medical/physical examination. 6. The appropriate authority (a brigadier general) approved his request on 19 August 1980 and directed that the applicant be discharged under other than honorable conditions. 7. Accordingly, he was discharged under other than honorable conditions on 18 September 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He completed 11 months and 20 days of total active service and had 89 days of lost time due to AWOL. 8. On 20 April 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He contended at that time that he was AWOL because of the noncommissioned officers and that he desired to enlist again. After considering the facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable and voted to deny his request for an upgrade on 17 February 1982. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 at any time after charges have been preferred. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive. A discharge under other than honorable conditions is normally considered appropriate. 10. Army Regulation 635-200, 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. 11. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances. 2. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record. In doing so he admitted guilt to the charges against him. 3. The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated acts of misconduct, his undistinguished record of service, and the absence of mitigating circumstances at the time. His service simply did not rise to the level of under honorable conditions. 4. While it is indeed unfortunate that the applicant now has a medical condition, there is no evidence to show his medical condition was a result of his limited military service. Nevertheless, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20100026048 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100026048 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1