IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028334 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  He states, in effect, he believes his record is unjust because the Department of Veterans Affairs (VA) considered him to be eligible for benefits based on the facts, statements, and circumstances provided by him and the Army.  He contends he served faithfully and completed 5 years and 7 months of meritorious service that was beneficial to our great country.

3.  He provides:

* a self-authored statement
* his DD Form 214 (Certificate or Release or Discharge from Active Duty)
* extracts from five DA Forms 4856 (General Counseling Forms)
* a DA Form 873 (Certificate of Clearance and/or Security Determination)
* a DA Form 1695 (Oath of Extension of Enlistment)
* the first page of a letter from the Baltimore, Maryland Regional Office of the VA
* the first page of a letter from the National Personnel Records Center
* two character reference letters
* his former company commander's endorsement memorandum for his discharge
* a DA Form 31 (Request and Authority for Leave)


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 16 July 1986.  Upon completion of initial entry training he was awarded military occupational specialty 11B (Infantryman).  The highest rank/pay grade he attained while serving on active duty was specialist/E-4.

3.  His record contains (and he also provides) a DA Form 1695, dated 9 July 1987, which shows he voluntarily extended his 4-year period of enlistment to a period of 5 years and 7 months in order to comply with reassignment instructions to Alaska.

4.  His record contains (and he also provides) a DA Form 873, dated 23 December 1988, which shows he was granted a Secret security clearance.

5.  His record shows he arrived in Alaska on 12 January 1988.

6.  He provides five DA Forms 4856 which were rendered to document counseling sessions held between January 1988 and June 1990.  These forms show his supervisor noted that even though he had often times been indiscriminately vocal with his grievances he had always done what was asked of him.  His job performance in the mail room, his physical fitness, personal appearance, and initiative were commendable.  However, he had a period during which this was not the case.  It was noted that his attendance and accountability had vastly improved.  He was informed that if he could avoid the turmoil that he encountered on the previous rating period his supervisor would actively endorse keeping him in the section in a capacity where he could have his own area of responsibility.  He was advised to stay with his chain of command and give it a chance to work for him.  The supervisor stated that they were behind him and had supreme confidence in his use to the section.

7.  His record contains (and he also provides) a DA Form 31 which shows he was approved to take 62 days of terminal leave from 16 October to 15 December 1991 in conjunction with his voluntary separation from the Army upon the expiration of his term of service.

8.  The DD Form 458 (Charge Sheet) is not available for review with this case.  His record contains (and he also provides) a memorandum rendered by the Battalion Chaplain of 4th Battalion, 9th Infantry Regiment, 6th Infantry Division (Light), Fort Wainwright, Alaska, dated 12 November 1991.  The chaplain noted that he had known the applicant and his wife for 20 months and counseled both of them prior to her return to Virginia.  He had recently spent hours talking with the applicant, his company commander, a lieutenant, and several members of the Personnel Administration Center regarding the applicant's absence without leave (AWOL) charge and the circumstances surrounding the charge.  The chaplain opined that the applicant had acted naively and with bad counsel from "barracks lawyers."  He further opined that the years the applicant spent taking shots to the head while boxing may have adversely affected his reasoning ability and communication skills.  The chaplain opined that the applicant acted stupidly, but without actual pre-planned criminal intent and that he appeared to be learning from his mistakes.  The chaplain recommended that the applicant be processed out of the Army administratively rather than through the court-martial process.

9.  His record contains (and he also provides) a statement rendered by Sergeant (SGT) T--d B---r, wherein he recommended that the applicant be granted an administrative discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request, SGT B---r opined that the applicant should be removed from the Army's payroll as soon as possible.  SGT B---r stated the allegations made against the applicant were not completely characteristic of his service and attributed his misconduct to the fact that his family had departed Alaska and he was virtually unable to think rationally without their positive influence.  In conclusion and without speculating guilt or innocence, SGT B---r opined that discharging the applicant in lieu of court-martial was worthy of careful consideration.

10.  The applicant's record contains a memorandum he rendered and addressed through his chain of command in support of his request for discharge for the good of the service on 4 November 1991.  He stated he had accomplished many positive things during his 5 years in the Army of which he was proud.  He also made some mistakes which he did not try to justify because there was no excuse for his actions; however, he was facing difficult personal problems at the time along with a great deal of emotional distress.  His family left Alaska in mid-July in preparation for his discharge from the Army in December 1991.  His financial and marital problems exacerbated as the physical and emotional separation from his family took its toll and was further compounded by his mother's illness and his father's loss of employment.  As a result, he felt stressed out, helpless, and emotionally unstable.  He emphasized that his service prior to the incident was commendable.  He had received certificates of achievement, award of the Army Achievement Medal and Army Good Conduct Medal.  He concluded that he felt it would be more beneficial to the Army, his family, and to himself to be granted an administrative discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 in lieu of court-martial.

11.  On 15 November 1991, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for discharge he indicated 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 discharge under other than honorable conditions.  He 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.

12.  His chain of command recommended approval of his request and recommended that he be discharged under other than honorable conditions.

13.  On 2 January 1992, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and given an under other than honorable conditions discharge.

14.  On 13 January 1992, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and given an under other than honorable conditions discharge.  He had completed 5 years, 5 months, and 28 days of creditable active military service.

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



16.  He provides the first page of a letter he received from the National Personnel Records Center, dated 22 March 2004, which indicates his entitlement to the following awards and decorations:

* Army Achievement Medal
* Good Conduct Medal
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Automatic Rifle Bar and Grenade Bar
* Army Lapel Button
* Air Assault Badge

17.  He provides the first page of a letter he received from the Regional Office of the VA located in Baltimore, Maryland wherein he was advised they had made a decision regarding his discharge from the military.  The letter informed him that he may be eligible for treatment at a VA hospital for any condition determined to be related to his military service.  He was further advised that although he was discharged under other than honorable conditions from the U.S. Army, based on his military records the VA had determined that he was eligible for VA benefits.  They based their decision on the facts and circumstances from the Army and a statement he had provided in support of his claim.

18.  He provides a self-authored statement, dated 17 November 2010, wherein he provides a synopsis of his aforementioned honorable service and the departure of his family from Alaska prior to the incident.  He states he began hanging out with single Soldiers, made some very bad decisions, and began having trouble about the time his terminal leave was approved.  He was accused of unauthorized use of a vehicle about 30 days prior to the beginning of his terminal leave.  He already completed out-processing and already had a plane ticket to fly home, so he signed out on terminal leave and departed Alaska to go home.  He was apprehended and charged with being AWOL for about 2 weeks.  He was brought back to Fort Wainwright, Alaska and was told that he was being involuntarily extended on active duty pending court-martial proceedings.  He is asking the Board to consider the facts of his discharge and the fact that he was an outstanding Soldier who had never been previously punished or threatened with punishment under the UCMJ.




19.  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 at any time after the charges have been preferred.

20.  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.

21.  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.

22.  The VA does not have authority or responsibility for determining the characterization of a Soldier's service.  The VA provides benefits and awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different conclusions based on the same information.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  His allegation that his discharge should be upgraded based upon the VA's decision to consider him eligible for benefits is duly note.  However, the VA does not have authority or responsibility for determining the characterization of a Soldier's service.  




3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

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

5.  Based on his record of indiscipline he is not entitled to an upgrade of his discharge to either an honorable or a general characterization of service.

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)                                         AR20100028334



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ABCMR Record of Proceedings (cont)                                         AR20100028334



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