IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012


		DOCKET NUMBER:  AR20110014386 


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 under other than honorable conditions discharge.

2.  The applicant states the separation authority did not have all of the facts in deciding his case.

	a.  He was on authorized leave and on holiday in Mexico when a drunk driver hit the car he was traveling in.  He was the only survivor of the crash and he was unconscious for a very long time.  As a result, he was placed in an absent without leave (AWOL) status.

	b.  He desires to be eligible for veteran benefits.

3.  The applicant provides no additional documentary evidence in support of his request.

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 for a period of 3 years on
29 September 1975.  

3.  On 13 May 1976, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being absent from his unit from 20 January to 2 May 1976.

4.  On 13 May 1976, the applicant consulted with legal counsel and voluntarily requested discharge 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.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant elected not to submit any statements with his request. 

	c.  The applicant and his legal counsel placed their signatures on the document.

5.  A Standard Form 93 (Report of Medical History) completed by the applicant on 14 May 1976 shows in item 11 (Have You Ever Had or Have You Now) - Head Injury?, that the applicant placed a checkmark in the "No" column.  In addition, the applicant did not indicate on the form that he had been unconscious for any period of time.

6.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge and issuance of an undesirable discharge.

7.  On 28 May 1976, the separation authority approved the applicant's request and directed an Undesirable Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged on 7 June 1976 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge.

	a.  He completed 4 months and 28 days of active service this period.

	b.  Item 27 (Remarks) [in part] shows he had 103 days of time lost.

9.  On 8 January 1980, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under honorable conditions discharge to an honorable discharge.  On 28 May 1982, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

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

   a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged, an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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.  The applicant contends that his under honorable conditions discharge should be upgraded because he was in a car accident while on leave that resulted in him being in an unconscious state for a long period of time.  As a result, he was charged with being AWOL; however, the separation authority was unaware of his medical condition.

2.  The applicant's contention regarding his being in a state of unconsciousness during the period of AWOL was considered.

	a.  The applicant elected not to provide a statement at the time he submitted his request for discharge when he had the opportunity to provide information regarding his medical condition to the separation authority.

	b.  In addition, during his separation physical examination, the applicant did not indicate a history of being unconscious.

	c.  Thus, the evidence of record does not support the applicant's contention.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service.  Considering all the facts of the case, the characterization of service directed for the period of service under review was appropriate and equitable.

4.  Records show the applicant had 103 days (3 months and 13 days) of time lost and he completed less than 5 months of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

6.  In view of all of the foregoing, 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 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)                                         AR20110014386



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ABCMR Record of Proceedings (cont)                                         AR20110014386



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