IN THE CASE OF:
BOARD DATE: 10 November 2010
DOCKET NUMBER: AR20100013600
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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.
2. The applicant states he did not get a bad conduct discharge so it should not be impossible to upgrade his status. He is now a disabled veteran attempting to use his Department of Veterans Affairs (VA) benefits.
3. The applicant provides a self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 4 March 1980 for a period of 3 years. During this period, he served in Turkey from 16 June 1980 through 16 May 1981. His highest grade held was specialist four/E-4.
3. On 18 December 1981, charges were preferred against the applicant for being absent without leave from 5 November 1981 to 14 September 1983.
4. The applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the VA if a UOTHC discharge were issued. He did not submit statements in his own behalf.
5. The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with issuance of a UOTHC discharge.
6. The applicant was discharged on 14 October 1983 under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge. He completed 1 year, 8 months, and 28 days of active service with 678 days of lost time.
7. The applicant's service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. The applicant provided a self-authored statement in which he stated the following:
* he is attempting to get closure with the Department of Defense by getting his UOTHC discharge upgraded to an honorable discharge
* he is now suffering from post-traumatic stress disorder, chronic obstructive pulmonary disease, and other disabilities related to his service in "Mid East Asia"
* he wants an upgrade to honorable in order to be eligible to use the local VA Health Care System facilities
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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.
10. Army Regulation, 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. Although the applicant requests an upgrade of his UOTHC discharge to honorable so he will be eligible for VA benefits, this issue is not sufficiently mitigating to warrant an upgrade of his discharge.
2. 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. The applicant's service record does not indicate his request was made under coercion or duress.
3. The applicant's service record shows he was charged with being absent without leave for a total of 678 days. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either an honorable or a general discharge.
4. The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.
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) AR20100013600
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