IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110002263 


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.

2.  The applicant states he served his country proudly for 2 years, 8 months, and 18 days of his 3-year enlistment and he completed 11 months and 27 days of foreign service.

   a.  He states he has been denied veteran's medical benefits.

   b.  He adds his father served proudly during World War II and participated in the Normandy invasion.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army for a period of 3 years on 24 June 1976.  He completed training and was awarded military occupational specialty 11B (Infantryman).

3.  He served overseas in the Republic of Korea from 27 October 1976 through 23 October 1977.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on two occasions; for failing to go at the time prescribed to his appointed place of duty on 28 August 1978 and again on
4 September 1978.

5.  On 25 May 1979, the applicant's company commander preferred court-martial charges against him for violation of Article 86, UCMJ, for absenting himself from his organization from 19 January 1979 to 7 May 1979.

6.  On 25 May 1979, the applicant consulted with legal counsel and 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he was guilty of the charge against him or of a lesser-included offense contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was advised that he could submit any statements he desired in his own behalf.  The applicant elected not to submit statements with his request.

7.  On 18 June 1979, the commander recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

8.  On 20 June 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.

9.  The applicant's DD Form 214 shows he was discharged on 27 June 1979 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He completed 2 years, 8 months, and 18 days of net active service; 11 months and 27 days of foreign service; and he had 108 days of time lost.

10.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  On
27 September 1990, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of absence without leave (AWOL) in excess of 30 days.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who 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.

	b.  Chapter 3, 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.


	c.  Chapter 3, 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 that his under other than honorable conditions discharge should be upgraded because he completed his overseas tour of duty and served his country for more than 2 years and 8 months.

2.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  The applicant's overseas service in the Republic of Korea and his net active service are acknowledged.  However, the evidence of record also shows the applicant received NJP on two occasions, he had a total of 108 days
(i.e., 3 months and 18 days) of time lost, and he failed to complete his 3-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  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)                                         AR20110002263



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ABCMR Record of Proceedings (cont)                                         AR20110002263



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