BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003206 


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 an honorable discharge.

2.  The applicant states, in effect:
 
* his record is in error or unjust because he was ultimately found not guilty
* the fact that he was found not guilty suggests he went through the legal system and his charges were adjudicated; therefore, he should have been honorably discharged
* he believes he should be entitled to the same benefits and have the same rights as other Veterans who served
* he has been diagnosed with a brain tumor and he should have access to veterans medical facilities
* he was not perfect, but he fulfilled his obligation and he should be treated honorably

3.  He provides no additional documents.

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 21 August 1991.

3.  On 29 July 1993, he was charged with:

* three specifications of disobeying a lawful order on 17, 25, and 26 July 1993
* assault with a dangerous weapon, on 8 May 1993

4.  On 14 October 1993, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to completing his request, he consulted with his appointed counsel, who advised him of his rights.  The applicant acknowledged he:

	a.  was making the request of his own free will and he had not been subjected to coercion whatsoever by any person;

	b.  had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge;

	c.  did not desire further rehabilitation or to continue service in the military;

	d.  understood that if his request was accepted he could be issued a UOTHC discharge and he understood the effects of such a discharge.  He understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including many or all benefits administered by the Department of Veterans Affairs;

	e.  understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

   g.  submitted a statement on his behalf requesting that he be considered for a general discharge.  He requested that the death of his best friend and his father be taken into account of atypical behavior.  He concluded by stating that he felt he was not worthy of future military service and hoped he would be allowed to reenter the civilian population in order to get a new start on life.

5.  On 14 October 1993, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with a UOTHC discharge.  On 6 April 1994, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 7 months, and 16 days of total active service.  

6.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 (Personnel Separations) 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 UOTHC discharge is normally considered appropriate.

8.  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.

9.  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's contention that his discharge should be upgraded so that he may be eligible for the same benefits and rights as other veterans was found to lack merit.

2.  The available evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  As a result, he did not undergo a trial. Therefore, he was not found innocent or guilty of any charges.  He acknowledged he understood he could be ineligible for many or all benefits, including medical treatment, administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws if he was issued a UOTHC discharge.  There is no indication that his request was made under coercion or duress.

3.  In the absence of evidence to the contrary, it appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Each case is individually decided based on its merits when an applicant requests a discharge upgrade.  

5.  The available evidence is insufficient for granting the applicant's request.

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)                                         AR20110003206



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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