IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110010114 


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 discharge under other than honorable conditions (UOTHC) to an honorable discharge.

2.  He states he:

* was young and immature and uncertain about his future
* smoked and drank due to stress
* was undeveloped, insecure, erratic, volatile, and continued to make bad choices he now regrets
* now has horrible dreams of the 15 months he spent serving his country
* has had three open-heart surgeries and his kidney has shut down which forced him on dialysis

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); five character references; and 121 pages of medical documents from the Methodist Hospital, Germantown, TN.

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 was born on 18 May 1969 and he enlisted in the Regular Army on 10 June 1987 at 18 years of age.  The highest rank/pay grade he attained while on active duty was private/E-2.  However, at the time of his discharge he held the rank/pay grade of private/E-1.

3.  On 26 July 1988, charges were preferred against the applicant for stealing the property of a specialist four, of some value, and stealing the property of a bank in the amount $400.00.

4.  He consulted with legal counsel and voluntarily 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), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he understood he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge were issued.  He did not submit statements in his own behalf.

5.  The separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with the issuance of a UOTHC discharge.

6.  On 13 September 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with a discharge UOTHC.  He completed 1 year, 3 months, and 4 days of creditable active service.

7.  On 5 June 1991, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

8.  The applicant provides character references from friends and former employers who describe him as being dependable, reliable, hard-working, conscientious, honest, peace-loving, courteous, and trustworthy.

9.  He provided medical documents which indicate he was admitted to the Methodist Hospital on 25 March 2010 and was discharged on 21 April 2010.  His discharge diagnoses were listed as severe aortic valve insufficiency, coronary artery disease (status post-aortic valve replacement), coronary artery bypass grafting, post-operative perivalvular leaks (status post-redo aortic valve replacement), post-operative respiratory failure, post-operative fever, new onset diabetes mellitus, acute renal insufficiency, sleep apnea, hypertension, and depressive disorder.

10.  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 UOTHC is normally considered appropriate.

11.  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.
   
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.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was 19 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The fact that the applicant is currently experiencing difficulty obtaining healthcare is unfortunate.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.

3.  The applicant's voluntary request for discharge 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.  His service record does not indicate the request was made under coercion or duress.
4.  He was advised of the effects of a discharge UOTHC.  He was afforded the opportunity to submit statements in his own behalf, but he declined.

5.  A discharge UOTHC was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or fully honorable discharge, and there is no basis to upgrade his discharge now.

6.  The applicant's character references are acknowledged.  However, these documents are not sufficiently mitigating to warrant an upgrade of his discharge.

7.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the 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 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)                                         AR20110010114



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ABCMR Record of Proceedings (cont)                                         AR20110010114



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