IN THE CASE OF:	 

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110015599 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states someone other than himself stole an automobile and blamed the theft on him.  He further states, in effect, he has not been accused of a crime since and the false statements attributed to the theft have resulted in the denial of medical treatment he needs.

3.  The applicant provides a statement from a concerned third party.

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 5 July 1979.  His record shows he completed training and he was awarded military occupational specialty (MOS) 36K (Tactical Wire Operations Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of his discharge he held the rank/grade of private (PV1)/E-1.

3.  The applicant's record contains a DA Form 2-2 (Insert Sheet to DA Form 2-1 (Record of Court-Martial Conviction) that shows he received a special court-martial for wrongful appropriation on 21 June 1980 that was adjudicated on 13 November 1980 and approved on 26 November 1980.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 28 October 1981, for being absent without leave (AWOL) for the period
23 to 27 October 1981
* 18 December 1981, for disobeying a lawful order from a superior noncommissioned officer on 4 December 1981
* 25 January 1982, for being AWOL for the period 11 through 14 January 1982 and for disobeying a lawful order from a superior NCO on
18 January 1982

5.  His record contains Summary Court-Martial Order Number 9, issued by Headquarters, 2nd Brigade, 24th Infantry Division, that shows he pled guilty and he was found guilty of being AWOL for the period 2 through 21 March 1982 that was adjudicated on 26 March 1982 and approved on 29 March 1982.

6.  On 30 November 1982, charges were preferred against the applicant for being AWOL for the period 16 April through 23 November 1982.

7.  On 1 December 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other honorable conditions, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

8.  In the applicant's request for discharge, he indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct or 


dishonorable discharge.  He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 28 February 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service – in lieu of court-martial and directed the issuance of an under other than honorable conditions discharge.  On 18 March 1983, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 2 years, 10 months, and 18 days of creditable active service with 304 days of time lost.

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

11.  The applicant provides a third-party statement who takes responsibility for the theft and accident of an automobile while the applicant was stationed at Fort Ord, CA.  The statement is authenticated by the third-party’s signature, but is not notarized. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.

13.  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.

14.  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.  The applicant’s request for upgrade of his under other than honorable conditions discharge to an honorable discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record shows he was charged with the commission of an offense, AWOL, punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  Notwithstanding the applicant’s third-party statement, the evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  He was not discharged due to the theft; he was discharged due to his lengthy AWOL.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was AWOL, charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and accumulated 304 days of time lost.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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 veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.


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)                                         AR20110015599



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ABCMR Record of Proceedings (cont)                                         AR20110015599



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