BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110003898 


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 upgrade of his under other than honorable conditions discharge so he may be eligible for Department of Veterans Affairs (VA) benefits. 

2.  The applicant states at the time he did not think anything about his mood changes.  In 1991, he was treated for a brain tumor.  The doctor believes he had this tumor for a long time.

3.  The applicant provides:

* a VA Form 21-4138 (Statement in Support of Claim), dated 4 January 2011
* a Neurosurgery Follow-Up Note from his doctor, dated 16 March 2001
* Medical documents related to his 1991 tumor

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 on 9 January 1976.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  His record shows he served in Germany from September 1977 to March 1978.  He was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 31 May 1978, he departed his Fort Hood, TX, unit in an absent without leave (AWOL) status.  He surrendered to the military authorities on 2 June 1978.

5.  On 6 June 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 31 May to 2 June 1978.

6.  On 12 June 1978, he again departed his unit in an AWOL status and he surrendered to military authorities on 19 June 1978.

7.  On 27 June 1978, he departed his unit in an AWOL status for a third time.  He was dropped from the rolls of the Army as a deserter on the same date.  He was apprehended by civil authorities in Colorado Springs, CO, and he was returned to military control at Fort Carson, CO on 8 February 1979.

8.  On 13 February 1979, court-martial charges were preferred against him for two specifications of being AWOL from 12 to 19 June 1978 and from 27 June 1978 to 8 February 1979.

9.  On 14 February 1979, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, 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.
10.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood if the discharge request was approved, he could be deprived of many or all Army benefits, 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 law.  He also submitted a statement wherein he stated that his wife's former husband tried to kill him and that no one from his chain of command helped him.  He added that if he were returned to duty, he would not do a good job in the Army.

11.  On 27 February 1979, his immediate commander recommended disapproval of the applicant's request for discharge and stated that due to the applicant's extensive AWOL, a court-martial was more appropriate.

12.  On 7 March 1979, the separation authority, a major general, approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade.  On 21 March 1979, the applicant was accordingly discharged.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge.  This form further confirms he completed a total of 2 years, 6 months, and 21 days of total active service with 235 days of time lost.

14.  On 26 May 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  He submitted:

* A statement, dated 4 January 2011, in support of his VA claim wherein he claimed he had headaches during his military service.  In 1991, he was hospitalized for a brain tumor
* A doctor's statement, dated 16 March 2001, wherein a medical doctor describes a medical procedure the applicant underwent
* Various medical documents related to his 1991 brain tumor

16.  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.

17.  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.

18.  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 under other than honorable conditions discharge should be upgraded.

2.  His record shows 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 in lieu of trial by court-martial.  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.  He provides no evidence to show any headaches he suffered from while in the Army were related to his brain tumor 12 years later.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20110003898



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003898



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1