IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110011450 


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 undesirable discharge.

2.  The applicant states he is requesting the discharge upgrade in order to qualify for benefits through the Department of Veterans Affairs (VA).  It has been
18 years since his discharge and he is currently undergoing rehabilitation and is making great progress concerning his alcoholism.  He contends that he is at a great disadvantage because his service-related disabilities add to the stress levels he feels when he is trying to become a useful member of society and compete in the workplace.  He feels that he qualifies for a discharge upgrade and he should be recognized as a veteran.

3.  He states that while stationed at Fort Hood, TX, he worked for 5 years in the division air management element and he had conflict with a first lieutenant.  He arrived in Korea and he found the same individual had made captain and he was stationed in his unit.  The captain hated him and would do anything to hurt him.

4.  He states the bank did not send him any statements for 10 months and he attempted to contact them on several occasions without success.  He bought all his checks back, made restitution, and kept track of all the checks he had written. He contends that had he been prosecuted, the most that would have happened would have been a loss of a stripe.  It was cruel and unusual punishment because he was very close to the end of his enlistment.  He would have never signed his discharge if he knew then what he knows now.

5.  The applicant provides:

* three self-authored letters, dated 18 and 20 May 2011 and 10 July 2011
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* four letters of support

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 10 August 1983.  On 10 June 1986, he reenlisted for a period of 6 years.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 effective 1 August 1989.

3.  On 8 May 1991, a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on 30 April 1991 based on four dishonored checks totaling $410.75.  The applicant reviewed the pending action against him and he elected not to submit a statement in his own behalf.  On 8 May 1991, the approving authority approved the bar certificate.  On 16 May 1991, the applicant was advised of his right to appeal the imposition of the bar.  He elected not to appeal the Bar to Reenlistment.

4.  The applicant's separation proceedings are not available for review; however, his record contains a DD Form 214 that shows on 4 March 1992 he was discharged 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, in the rank/grade of private (PV1)/E-1.  His service was characterized as under other than honorable conditions.

5.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  He provides four letters of support that attest to his progress towards resolving past life situations and fully support the upgrade of his discharge.

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

	a.  Chapter 10 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.

	b.  Paragraph 3-7a states 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 states 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 ABCMR does not upgrade discharges for the sole purpose of enabling an individual to apply and/or qualify for veteran's benefits.

2.  Although his record is void of the specific facts and circumstances surrounding his discharge, his DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10.  It appears he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice which could have resulted in a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests and he is presumed to have willingly and in writing requested discharge from the Army to avoid trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant is commended on the progress made regarding past issues in his life and the statements provided were also noted.  However, the documents provided failed to show that his discharge was in error or unjust.

4.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20110011450



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ABCMR Record of Proceedings (cont)                                         AR20110011450



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