IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100020722 


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 discharge to an honorable discharge.

2.  He states he went to combined basic and advanced individual training at Fort Knox, Kentucky.  After the first 2 months of training, he injured his back and was sent to Louisville for treatment.  He offers he was there for 11 days and was told his back was "bad, but not bad enough."  He went back to his unit, dealt with the pain, and completed his training.  After training he was sent to El Paso, Texas.  During his assignment in Texas, he continued to have back problems and he was constantly being harassed by an E-7 who resented him for dating and later marrying a Mexican girl.  The way he was treated by the E-7 was worse than his treatment in basic training.  His wife did not like the way he was being treated and talked him into leaving.  He insists the reason he was absent without leave (AWOL) was based on the treatment he received from the E-7.  He wonders if he should have been medically discharged instead of resorting to AWOL.  He concludes he is now in need of medical care and cannot keep a job or continue to afford the cost of a chiropractor.

3.  He provides his self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 15 June 1989.

3.  On 31 July 1990, charges were preferred against him for being AWOL from 21 May 1990 to 30 July 1990.

4.  On 31 July 1990, he signed a memorandum for record declining a separation medical examination.

5.  On 6 August 1990, he consulted with counsel and he 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.

6.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Department of Veterans Affairs (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his behalf.

7.  On 28 August 1990, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  On 18 September 1990, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 1 year, 3 months, and 4 days of net active service this period with the period of 21 May 1990 to 30 July 1990 listed as lost time.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be directed for an individual who was discharged for the good of the service.

11.  Army Regulation 635-200, 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.

12.  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.  It is unfortunate that the applicant is in need of medical care and cannot keep a job or continue to afford the cost of a chiropractor.  However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' benefits.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial.

3.  His record of service included 70 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general 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 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)                                         AR20100020722



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ABCMR Record of Proceedings (cont)                                         AR20100020722



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