BOARD DATE: 23 June 2011
DOCKET NUMBER: AR20100029615
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 (UOTHC) discharge to a general discharge.
2. The applicant states he is requesting that his discharge be upgraded because he is suffering from a lung disease. He also states that he has a cyst or a tumor on the top of his head the size of a softball due to shots he received in his head when he was in the Army. He also states that he was not aware of his rights during the court-martial process because he was not present.
3. The applicant provides no additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 20 July 1989. He completed training and was awarded military occupational specialty (MOS) 71M (Chaplain Assistant).
3. He completed basic airborne training and he was assigned to Fort Bragg, NC, from 22 December 1989 until he left his unit in absent without leave (AWOL) status from 2 July to on or about 24 August 1993.
4. On 1 September 1993, charges were preferred against the applicant for the above AWOL offense. On the same date, 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. He acknowledged he understood the elements or the charges against him and admitted that he was guilty of at least one of the offense(s) which authorized a punitive discharge. He also acknowledged he understood he would receive a UOTHC discharge, he would be deprived of many or all Army benefits, and that he might be ineligible for veteran's benefits administered by the Department of Veterans Affairs (VA). He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge. He also indicated that he had received legal advice but his request for discharge had been made voluntarily and that it reflected his own free will.
5. The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of a UOTHC discharge. The separation authority approved the recommendation on 25 October 1993. On 13 December 1993 the applicant was so discharged. He had completed 4 years, 3 months, and 2 days of net active service.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation 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. 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 UOTHC discharge is normally considered appropriate.
7. 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 contends his UOTHC discharge should be upgraded because he is suffering from a lung disease, and has a cyst or a tumor on the top of his head the size of a softball, due to shots he received in his head when he was in the Army.
2. The applicant submitted no documentation to substantiate his contentions. There is no available evidence that his claimed medical conditions are related to his active duty military service or to his misconduct.
3. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The applicant's characterization of discharge is commensurate with his overall record of military service.
4. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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) AR20100027085
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ABCMR Record of Proceedings (cont) AR20100029615
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