IN THE CASE OF:	

		BOARD DATE:	1 September 2009    

		DOCKET NUMBER:  AR20090006555 


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 discharge under other than honorable conditions be upgraded to a more favorable discharge that will qualify him for Department of Veterans Affairs (VA) benefits.

2.  The applicant states that he has no job because his job moved to Mexico and he is in need of medical attention; however, the VA will not give him medical care because of his discharge.

3.  The applicant provides a letter with his application that contains two paragraphs explaining 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 enlisted in the Regular Army in St. Louis, Missouri on 11 August 1971 for a period of 3 years and assignment to the 1st Infantry Division Fort Riley, Kansas.  He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training (AIT) as a light weapons infantryman at Fort Polk, Louisiana before being transferred to Fort Riley.  He was advanced to the pay grade of E-3 on 16 December 1971.

3.  On 23 May 1973, he reenlisted for a period of 6 years, assignment to Fort Carson, Colorado and a variable reenlistment bonus.  He was transferred to Fort Carson on 10 July 1973 and was advanced to the pay grade of E-4 on 15 October 1973.

4.  On 24 November 1974, he was transferred to Germany and served in the Berlin Brigade for the duration of his tour.  He departed Germany on 19 November 1977 and was transferred to Fort Polk.

5.  On 26 July 1978, the applicant went absent without leave (AWOL) and he remained absent in desertion until he was returned to military control at Fort Sill, Oklahoma on 10 May 1981, where charges were preferred against him.

6.  The facts and circumstances surrounding the applicant’s discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in St. Louis in 1982.  However, his records contain a duly constituted DD Form 214 signed by the applicant, which shows that he was discharged under other than honorable conditions at Fort Sill on 16 June 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 years, 3 months and 10 days of total active service and had 1,019 days of lost time due to AWOL.  

7.  There is no evidence in the available records to show that he ever applied to the ADRB for an upgrade of his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  Paragraph 3-7b also 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.  In the absence of evidence to the contrary, it must be presumed that 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.

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 records.  

3.  The applicant’s contentions and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absence and overall record of service.

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)                                         AR20090006555





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ABCMR Record of Proceedings (cont)                                         AR20090006555



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