IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028547 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he is requesting an upgrade of his discharge so he can receive veteran’s benefits.

3.  The applicant provides no documentation in support of his request.

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 18 August 1987.  He completed the training requirements and he was awarded military occupational specialty 94B (Food Service Specialist).  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 5th Calvary Division, Fort Hood, TX.  On 29 December 1989, he was honorably discharged for immediate reenlistment.

3.  On 30 December 1989, he reenlisted for 4 years (1 year - current station stabilization [Fort Hood]), in the rank of specialist/E-4, which was the highest rank/grade he held during his period of enlistment.

4.  His record reveals that he left his unit at Fort Hood in an absent without leave (AWOL) status from 8 June to 23 October 1992 (137 days) until he was apprehended by civilian authorities in Lancaster, WI and returned to military control at Fort Knox, KY on the same date.

5.  On 8 June 1992, the applicant signed a Memorandum, Subject:  Admission of AWOL for Administrative Purposes which indicated he had been advised by legal counsel that the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  This was due to no fault of the government but merely due to the time required to request and mail the records.  He acknowledged that he understood:

   a.  Defense counsel was limited by the few records that were available and that his records were needed.  The applicant knowing all of this to be true waived all defenses that may have become known had defense counsel been able to review his records.  He knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from 8 June 1992 to 23 October 1992.  

   b.  This admission was for administrative purposes only so that he could be processed out of the Army.  He also acknowledged he understood he may be given an under other than honorable conditions discharge.  He further declared that his military defense counsel had explained all the legal and social ramifications of this type of discharge and what it would mean to him in the future.  
   
   c.  This agreement only pertained to his period of unauthorized absence without leave and that he realized the Army could (at any time prior to his discharge) prefer charges for any other military crimes that were pending against him. 






6.  The applicant's record contains Orders 329-00201 from Headquarters, U.S. Armor Center, Fort Knox, KY, date illegible, which confirms the applicant was assigned to the U.S. Army Transition Point from the Army Personnel Control Facility for discharge processing, effective 7 December 1992, in the rank of private.

7.  All of the facts and circumstances surrounding the applicant's administrative separation processing are not present in the available records; however, the records do contain a duly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of court-martial with an under other than honorable conditions discharge, in the rank of private.  He completed a total of 
4 years, 11 months, and 5 days of creditable active military service and he had 137 days of lost time.  

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

9.  Army Regulation 635-200 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.  

10.  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.

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.  The applicant contends that his discharge should be upgraded so he may receive veteran’s benefits.

2.  His records show 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.  He voluntarily, willingly, and in writing, requested discharge from the Army.  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.

3.  The applicant's desire to have his under other than honorable conditions discharge upgraded to enable him to make application to the Department of Veterans Affairs is acknowledged.  However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.    

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

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)                                         AR20100028547



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ABCMR Record of Proceedings (cont)                                         AR20100028547



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