IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110005416 


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 his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states:

* A sergeant told him his discharge would be changed to general after six months
* He lost hearing in his right ear from the live fire at Fort Polk in 1981
* He needs to get compensation/benefits for his hearing loss
* He was discharged early because his wife was sick
* He would like to reenter the Army 

3.  The applicant provides no documentary 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 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.  He enlisted in the Regular Army on 21 August 1980 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11C (indirect fire infantryman).     

3.  On 2 July 1981, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. 

4.  He went absent without leave (AWOL) on 9 August 1981 and returned to military control on 24 November 1981.  

5.  On 25 November 1981, he signed a Medical Examination for Separation/
Retirement Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty.  I also understand that my medical records will be reviewed by a physician at a later date by the appropriate medical treatment facility.  If the review of my records indicate a problem, I will be required even if I elect not to take an examination.  I do not desire a separation medical examination."  Apparently, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.

6.  On 30 November 1981, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

7.  On 2 December 1981, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

8.  On 11 December 1981, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

9.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 24 December 1981 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 1 year and 19 days of creditable active service and 107 days of lost time.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told his discharge would be changed to a general discharge after 6 months.  However, a discharge upgrade is not automatic.

2.  He contends he lost hearing in his right ear due to live fire in 1981.  However, there is no evidence of record and he did not provide any evidence that shows he suffered hearing loss prior to his discharge on 24 December 1981.



3.  He contends he was discharged early because his wife was sick.  However, family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show he sought assistance from his chain of command, chaplain, or any other available resources on a way to resolve his problems within established Army procedures prior to going AWOL.

4.  He contends he is seeking compensation/benefits (apparently he means from the Department of Veterans Affairs (DVA)).  However, a discharge is not changed for the purpose of obtaining DVA benefits.

5.  His record of service included one NJP and 107 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

6.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20110005416





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005416



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1