IN THE CASE OF:	

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100022958 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states he needs the upgrade in order to receive health benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence 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's military personnel records show he enlisted in the Regular Army on 16 March 1976 for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).

3.  On 29 November 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 7 July to on or about 15 November 1978.

4.  On 10 January 1980, court-martial charges were preferred against the applicant for being AWOL from on or about 17 May 1979 to on or about 
7 January 1980.

5.  On 10 January 1980, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

6.  On 14 January 1980, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was being charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  The applicant submitted a statement to be included with his request for discharge.  He stated he joined the Army because he was unemployed, out of money, and he wanted to learn a skill.  He now wants out of the Army because while he was AWOL he found a good job.  His boss paid his way to surrender and will send someone to pick him up once he is discharged.  His boss had already got him good credit and got the applicant started out on the right foot.  The applicant stated if he's not discharged he would be back.

9.  On 28 February 1980, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and directed he receive an under other than honorable conditions discharge.

10.  On 26 March 1980, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, for the good of the service.  He had completed 3 years and 13 days of active service that was characterized as under other than honorable conditions.  He had 366 days of time lost.

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

12.  References:

	a.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  

	b.  Army Regulation 635-200 states 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.  

	c.  Army Regulation 635-200 states 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.  The applicant contends his discharge under other than honorable conditions should be upgraded to an honorable discharge so he can receive health benefits from the VA. 

2.  The applicant stated in his request for discharge that he would go AWOL again if he was not discharged.  In his signed request for discharge he stated he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

Therefore, the applicant was well aware of the consequences of his request.

3.  The applicant’s voluntary request for discharge 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.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  There is no evidence of procedural or other errors that would have jeopardized his rights.

5.  The ABCMR does not upgrade a properly-issued discharge solely for the purpose of making an individual eligible for benefits from another agency.

6.  The applicant’s record of multiple periods of AWOL clearly shows his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He had 366 days of lost time, thereby showing his service to be unsatisfactory.  Therefore, there is an insufficient basis to upgrade his under other than honorable conditions 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)                                         AR20100022958





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ABCMR Record of Proceedings (cont)                                         AR20100022958



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