IN THE CASE OF:	  

		BOARD DATE:	       7 August 2008

		DOCKET NUMBER:  AR20080006312 


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 (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that he needs his discharge to be upgraded in order to get Department of Veterans Affairs (VA) benefits.  An error or bad judgment on his part is costing him the ability to obtain VA benefits.

3.  The applicant provides no supporting documentation.

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 first enlisted on 25 October 1978.  He served on active duty for three years, being honorably released from active duty on 24 October 1981 with transfer to the United States Army Reserve (USAR) Control Group (Reinforcement) for the period from 25 October 1981 through 10 October 1984.

3.  The applicant enlisted in the Regular Army on 15 August 1989, completed additional training, and was converted from military occupational specialty (MOS) 24C (HAWK Firing Section Mechanic) to MOS 94B (Food Service Specialist).

4.  The applicant went AWOL (absent without leave) on 20 October 1991 and remained absent until 26 April 1993.

5.  Upon his return to military control court-martial charges for the period of AWOL were initiated.   The unit commander recommended that he be tried by a general court-martial and receive a Bad Conduct Discharge.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

7.  The discharge authority approved the applicant's request and directed that he be discharged under other than honorable conditions.  The discharge authority also directed that, in accordance with Army Regulation 635-200, paragraph 1-13, that the applicant be reduced from specialist four to the lowest enlisted grade.

8.  The applicant was discharged on 14 June 1993 in pay grade E-1.  His DD Form 214 shows that 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, with an UOTHC.  He had 2 years, 4 months, and 2 days of creditable service during this period of service with 545 days of lost time.  

9.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

10.  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.  

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

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.  There is no indication that the request was made under coercion or duress.

2.  The desire to receive VA benefits is not in and of itself a valid reason warranting an upgrade of the applicant's characterization of his second period of service.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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 that 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)                                         AR20080006312



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ABCMR Record of Proceedings (cont)                                         AR20080006312



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