IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019827 


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 his under other than honorable conditions discharge (UOTHC) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states almost a year into his enlistment, his wife was heavily into drugs and abandoned their children.  He immediately left to take custody of their children without thinking of his military obligation for which he is truly sorry.  He claims he surrendered to a local U.S. Army Reserve (USAR) unit in Miami to face absent without leave (AWOL) charges, but instead was enlisted in the Reserve unit.  He served in that unit until 1981, which included a period of activation in 1975.

3.  The applicant further states he had an accident during a drill weekend that resulted in his being taken to a Department of Veterans Affairs (VA) hospital and he has been receiving care from that facility for over 20 years.  He also contends he was denied benefits in October 2009 due to the UOTHC discharge he was not aware he received.  He claims he was never at Fort Bragg, North Carolina, and never signed a DD Form 214 (Certificate of Release or Discharge from Active Duty) in 1979.  He states he was only informed of his discharge when he requested a DD Form 214 from the National Personnel Records Center and does not understand how he can be penalized with a UOTHC discharge during a time when he was serving honorably.  He adds that he is desperate to continue medical treatment with the VA and is requesting an upgrade based on his honorable Army Reserve service.

4.  The applicant provides DD Forms 214, discharge orders, an Honorable Discharge (HD) Certificate, and a VSO Form 3 (Application for Aid and Attendance and/or Housebound Benefits) in support of this 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 record shows he enlisted in the Regular Army and entered active duty on 28 November 1972.  He was trained in and awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  The record shows the applicant was advanced to the rank/grade of 
private/E-2 on 4 February 1973 and this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the offenses indicated:

	a.  31 May 1973, for being AWOL from 16 April 1973 to 29 May 1973;

	b.  13 June 1973, for being AWOL from 5 to 12 June 1973; and

	c.  3 August 1973, for three specifications of failing to go to his appointed place of duty at the time prescribed on 18, 28 and 30 July 1973.

5.  A DA Form 3835 (Notice of Unauthorized Absence from the United States Army) shows the applicant departed AWOL on 13 August 1973 and was dropped from the rolls of his unit on 11 September 1973.

6.  The applicant's official military personnel file contains a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows he enlisted in the USAR on 19 September 1975 for 6 years.  Item 49 (Prior Service) of the DD Form 4 indicates he did not have prior active Federal service.  The applicant provided a DD Form 214 which shows that while a member of the USAR, he performed 4 months of active duty for training from 20 May 1975 through 20 September 1975.  The applicant also provided discharge orders that show he was honorably discharged from the USAR on 27 October 1981.

7.  A DA Form 4187 (Personnel Action), dated 3 October 1979, indicates the applicant was apprehended by civilian authorities on 20 September 1979 and was subsequently transported to Fort Bragg, North Carolina.

8.  On 2 October 1979, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 of the UCMJ by being AWOL from 13 August 1973 through 20 September 1979.

9.  On 3 October 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service.

10.  In his discharge request the applicant acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  He also acknowledged he could receive a UOTHC discharge and understood the possible effects of that discharge.  He further acknowledged that by receiving a UOTHC discharge, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life as a result of receiving a UOTHC discharge.

11.  On 8 October 1979, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge and be reduced to the lowest enlisted grade.  On 25 October 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 9 months and 21 days of creditable active military service and accrued over 6 years of lost time due to AWOL.
12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an HD or GD is authorized, a discharge UOTHC is normally considered appropriate.

14.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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 contention that his discharge should be upgraded based on the service he gave to the USAR so he can continue to receive VA medical care benefits has been carefully considered.  However, the evidence is not sufficient to support this claim.  Furthermore, the Board does not upgrade discharges solely for the purpose of gaining eligibility for veterans' benefits.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army for the good of the service 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 the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. 
However, it does reveal a significant disciplinary history beyond the court-martial charges that led to his discharge.  This includes his acceptance of NJP on three separate occasions and his accrual of over 6 years of lost time due to AWOL.

4.  In regard to applicant's enlistment in the USAR and subsequent honorable discharge, there is no indication his USAR unit was aware of the applicant's AWOL status at the time of his USAR enlistment.  It appears the applicant's enlistment in the USAR was based on a fraudulent enlistment contract at time.  Therefore, his honorable discharge from the USAR has no bearing on the type of discharge he received for his active duty enlistment.

5.  In view of the fact that the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge, his overall record of undistinguished service did not support the issuance of a GD the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

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)                                         AR20090019827



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ABCMR Record of Proceedings (cont)                                         AR20090019827



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