BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100021582


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect, he was not present at his court-martial proceedings and he wants his discharge upgraded so Department of Veterans Affairs (VA) benefits can be granted.

3.  The applicant provides no additional evidence.

4.  On 7 March 2011, the Board received a self-authored statement, dated          3 February 2011, which he submitted through his Member of Congress.

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
19 November 1991 for a period of 4 years.  He completed training and he was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  Records show he served in Southwest Asia, in support of Operations Desert Shield/Desert Storm, from 25 June 1992 to 13 November 1992.

4.  On 6 January 1993, he was reported absent without leave (AWOL) from his unit, Battery A, 3rd Battalion, 43rd Air Defense Artillery Regiment, Fort Bliss, TX. He remained AWOL until he returned to military control on 24 June 1993.  

5.  On 29 June 1993, court-martial charges were preferred against him for being AWOL from 6 January 1993 to 24 June 1993 in violation of Article 86, Uniform Code of Military Justice (UCMJ).
 
6.  On 29 June 1993, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a statement in his own behalf.

8.  In his personal statement submitted with his request for discharge, he stated, in effect, that extenuating family matters (i.e. his grandmother's health and his grandfather's lack of mobility due to hip replacement) resulted in his decision to go AWOL after the expiration of his normal leave.  He stated he felt an obligation to stay home to take care of his grandparents since they had cared for him and his sister when their mother had essentially abandoned them.  He stated that he only wished to remain at home until the summer when his sister finished school.  At that time she could take care of his grandparents upon his return to duty.  

9.  On 4 November 1993, the separation authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 9 December 1993, he was discharged accordingly.  His DD Form 214 confirms he completed 1 year, 7 months, and 3 days of total active service.  He also had 169 days of time lost due to being AWOL.

10.  On 26 April 2000, the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his under other than honorable conditions discharge.  After careful consideration the ADRB determined the reason for his discharge and the characterization of his service were both proper and equitable and voted to deny relief.

11.  In support of his application, he submitted a self-authored statement, dated  3 February 2011, in which he summarizes the circumstances leading to his enlistment, his deployment in support of Operations Desert Shield/Desert Storm, and his eventual discharge.   

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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, 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 discharge under other than honorable conditions is normally considered appropriate.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  While the ABCMR is sympathetic to his family situation at the time, the evidence of record fails to support his attempts to request any of the available remedies in place, such as leave extension or early separation from active duty.  

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  Based on his extended period of time lost, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100021582



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