IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080012515 


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, in effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that while stationed in Germany, he contracted Hepatitis and he is in poor health at this time due to this condition.  He claims that he was hospitalized for more than 6 months without a word regarding his status and grew tired of being confined.  As a result, he went absent without leave (AWOL).  He states that this was the only time in his military career that he was in trouble, and he believes he deserves a chance to get at least health benefits for the time he did serve.  He further states that he needs his discharge upgraded in order to acquire medical treatment from the Department of Veterans Affairs (VA).

3.  The applicant provides no documentary evidence in support of his application.

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’s military record shows that he enlisted in the Regular Army and entered active duty on 4 January 1973, and was trained in and awarded military occupational specialty 13B (Field Artillery).  His record shows he advanced to the rank of private first class (PFC) on 1 September 1973 and that this is the highest rank he attained while serving on active duty.

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that he served in Germany from 17 May 1973 through 29 April 1974.  Item 38 (Record of Assignments) shows that during his tour in Germany, he was a patient at the 30th Field Hospital from 4 through 28 April 1974; and that on 29 April 1974, he was medically evacuated to the United States and was assigned as a patient at the Medical Holding Company, Fort Benning, Georgia, where he remained until 8 July 1974, at which time he departed AWOL.  Item 44 (Time Lost) shows he was AWOL from 8 July 1974 through 11 February 1975.

4.  The applicant’s record shows that during his active duty tenure, he was awarded the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  The applicant’s record is void of any medical records indicating that he suffered from a medically disqualifying condition that would have warranted his separation processing through medical channels at the time of his separation processing.

6.  On 13 February 1975, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 8 July 1974 through on or about 12 February 1975.

7.  On 14 February 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the significance of a bad conduct or dishonorable discharge, and of the possible effects of an under other than honorable conditions (UOTHC) discharge.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

8.  In his discharge request, the applicant indicated that he understood that by submitting the request for discharge, he was acknowledging his guilt of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that he understood that if his request for discharge were approved, he could receive a UOTHC discharge, which could result in his being deprived of many or all Army benefits, that he would be administratively reduced to the lowest enlisted grade, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.  The applicant completed a statement indicating he did not like the Army, he did not want to be a good Soldier, and he did not care if he received an UD.

9.  On 11 March 1975, the separation authority approved the applicant’s request for discharge and directed that the applicant be discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  The separation authority further directed the applicant be reduced to the lowest enlisted grade and that he receive a UD.  On 27 March 1975, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued upon his discharge shows he completed a total of 1 year, 7 months, and 15 days of creditable active military service, and that he accrued 219 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.

12.  The same regulation stipulates that a UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded to a GD in order for him to receive VA health care benefits for a condition he contracted while serving on active duty was carefully considered.  However, while his current situation is unfortunate, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.

2.  The applicant's record gives no indication that the applicant suffered for a disabling condition that would have disqualified him from further service or that warranted his separation processing through medical channels at the time of his discharge.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and the evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

3.  The applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.

4.  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)                                         AR20080012515



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ABCMR Record of Proceedings (cont)                                         AR20080012515



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