BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110013828 


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 an honorable discharge.

2.  The applicant states his doctor considers him to be permanently disabled due to his medical conditions.  Without being eligible for services at the Department of Veterans Affairs (VA) Medical Center he is unable to get the medical treatment he needs.  He went AWOL (absent without leave) because he was making more money on the side than he was in the Army.  He states this is the only incident that occurred during his time in service where he did something he should not have done.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Physician progress notes for the period from 7 August 2009 to 15 June 2011

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 18 September 1979 for a period of 
3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  On 4 April 1980, he was assigned to the 24th Aviation Battalion, Hunter Army Air Field, GA.

3.  On 17 July 1980, he accepted nonjudicial punishment for being AWOL from on or about 7 July to on or about 17 July 1980.

4.  On 21 July 1981, he received a mental health status examination.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

5.  On 21 July 1981, court-martial charges were preferred against him for being AWOL from on or about 18 July 1980 until on or about 17 July 1981.

6.  On 22 July 1981, he voluntarily requested discharge for the good of the service.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits

8.  On 31 July 1981, the appropriate authority approved his request for discharge for the good of the service.  He directed the applicant be reduced to private/pay grade E-1 and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 21 August 1981, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for conduct triable by court-martial.  He had completed 10 months and 26 days of net active service that was characterized as under other than honorable conditions.  He had 375 days of time lost.

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Under Other Than Honorable Conditions Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits.  He also acknowledged that he had been advised and he understood he may be ineligible for many or all benefits administered by the VA.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  The physician progress notes he submitted were noted.  However, there is no evidence his current medical condition has any bearing on the type of discharge and the reason for his separation over 30 years ago.

5.  He failed to complete the term of service he had contracted for and he had 
375 days time lost.  Therefore, his period of service is unsatisfactory.

6.  In view of the above, there is an insufficient basis to upgrade his properly issued discharge to honorable or general under honorable conditions.

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)                                         AR20110013828



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ABCMR Record of Proceedings (cont)                                         AR20110013828



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