IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110015803 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he is in serious need of medical care from the Department of Veterans Affairs (VA).

3.  The applicant provides copies of a portion of his discharge proceedings in support of his application.

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's military personnel records show he enlisted in the Regular Army on 26 January 1979.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).   The highest pay grade he achieved was pay grade E-1.

3.  On 7 November 1979, court-martial charges were preferred against the applicant for going absent without leave (AWOL) from 10 July 1979 until on or about 5 November 1979.

4.  On 9 November 1979, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service after consulting with counsel.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he was guilty of the charge(s) against him or of a lesser offense(s).  He also acknowledged that he understood he could receive a UOTHC discharge and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued a UOTHC Discharge Certificate and he would be deprived of many or all Army benefits.  

5.  On 9 November 1979, the applicant’s unit commander recommended that the applicant be discharged from the United States Army with a UOTHC discharge.

6.  On 27 November 1979, the Commanding General approved the applicant's request for discharge for the good of the service and directed issuance of a UOTHC Discharge Certificate.

7.  On 7 December 1979, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service and in lieu of trial by court martial with a character of service of UOTHC.  He had completed 6 months and 14 days of net active service and he had 118 days of lost time due to being AWOL and in confinement.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 UOTHC discharge is normally considered appropriate.

9.  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.

10.  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.

11.  There is no indication that the applicant applied to the Army Discharge Review Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge UOTHC should be upgraded because he needs VA benefits was carefully considered and found to be without merit.  

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of service and in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an 
offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no evidence of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility 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 and any questions regarding eligibility for VA benefits should be addressed to the VA.
5.  In view of the above, there is no basis for granting his 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)                                         AR20110015803



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ABCMR Record of Proceedings (cont)                                         AR20110015803



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