IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110004735 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be changed to "for the benefit of."  

2.  He states that this change will allow him to receive Department of Veterans Affairs (VA) medical benefits.

3.  He provides no additional documents in support of his application.  

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 29 January 1973.  He continued to serve on active duty through reenlistments on 16 January 1975, 16 October 1978, and 16 December 1981.  
3.  On 2 December 1983, he received a letter of reprimand for failing to return to his place of duty as instructor for the Noncommissioned Officer Development Program Class, Troop G, 2nd Squadron, 6th Cavalry Regiment on 17 November 1983 and for failing to return to his place of duty again at Troop G, 2nd Squadron, 6th Cavalry Regiment.  

4.  On 3 April 1992, charges were preferred against the applicant for being absent without leave (AWOL) from 22 July 1984 to 24 March 1992.  

5.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the VA if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

6.  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 court-martial with the issuance of a UOTHC discharge.

7.  He was discharged on 8 May 1992 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC Discharge Certificate.  He completed 2 years, 8 months, and 20 days creditable active service during the period under review [16 December 1981 to 8 May 1992] with 2,803 days of lost time and 11 years, 9 months and 7 days total active military service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned a Separation Program Designator (SPD) code of "KFS" (In Lieu of Trial by Court-Martial).

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.


   b.  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.  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.

9.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “KFS” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “In Lieu of Trial by Court-Martial” and that the authority for discharge under this separation program designator is “Army 
Regulation 635-200, chapter 10."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statement that this change will allow him to receive VA medical benefits is acknowledged.  However, this issue is insufficiently mitigating to warrant relief in this case.  

2.  The applicant’s record shows he was charged with the commission of an offense (AWOL) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined.


4.  The applicant's record shows he was AWOL for 2,803 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general under honorable conditions discharge.

5.  The applicant's narrative reason for separation was based on his voluntary request for discharge in lieu of trial by court-martial and there is no basis upon which this reason should be changed.  

6.  The ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.  Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  

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)                                         AR20110004735





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ABCMR Record of Proceedings (cont)                                         AR20110004735



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