BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110017528 


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 a general discharge.

2.  The applicant states he wants his discharge upgraded for the purpose of obtaining medical benefits.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Three character reference letters 

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 13 April 1976 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 11E (armor crewman).

3.  On 12 January 1977, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 29 November 1976 to 
27 December 1976.

4.  On 23 April 1977, he went AWOL and returned to military control on 
19 September 1977.  Charges were preferred against the applicant for the AWOL period on 20 September 1977.

5.  On 21 September 1977, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected to make a statement in his own behalf.  In summary, he stated he wanted a chapter 10 discharge because he could not adapt to military life and it was best for him to get out.

6.  On 11 October 1977, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions.

7.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 26 October 1977 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 1 year and
20 days of creditable active service with 208 days of lost time.

8.  He provided three character reference letters from his pastor, a brother, and a friend.  His brother attests the applicant has been employed by the family logging business since 1977.  His pastor and friend attest the applicant is:


* Hard working
* Honest
* Dependable
* Conscientious
* Mild-mannered

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 discharge under other than honorable conditions is normally considered appropriate.

11.  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 contends he wants his discharge upgraded for the purpose of obtaining medical benefits (apparently he means from the VA).  However, a discharge is not changed for the purpose of obtaining VA benefits.

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  His record of service included one NJP and 208 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
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)                                         AR20110017528



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ABCMR Record of Proceedings (cont)                                         AR20110017528



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