IN THE CASE OF:	  

		BOARD DATE:	    13 March 2012

		DOCKET NUMBER:  AR20110017947 


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 under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  He states in 1979 he completed his first tour of honorable service and reenlisted with a promise of a lump sum bonus and military occupational specialty (MOS) 91C (Licensed Practical Nurse) course.  He adds that prior to him reporting for school, the course was changed from a long to a short course which he maintains was a breach of contract.  He states he consulted the Judge Advocate General (JAG) concerning the change in the course length and was advised by a JAG attorney to rebel "to include going absent without leave (AWOL) to force a change."  He offers that upon his return from AWOL he was discharged.  He states in the discharge agreement he signed, he was guaranteed all Department of Veterans Affairs (VA) benefits with the exception of a military funeral.  However, he maintains that VA is now giving him grief over his discharge status. 

3.  He does not provide additional evidence.

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 19 January 1976 and held military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably discharged on 28 December 1978 for immediate reenlistment which was accomplished the following day.

3.  His Enlistment or Reenlistment Agreement shows he reenlisted on 
29 December 1978 for 6 years for a Selective Reenlistment Bonus and MOS producing school 91C.  There is no mention of the amount of the bonus, how the bonus was to be paid, or the course length in the reenlistment agreement.  However, Orders 251-22, dated 29 December 1978, show he had a temporary duty (TDY) report date of 12 April 1979 to attend the 91C course.  The order stated that the period of TDY was 14 weeks.  On 30 April 1979, the 4th endorsement to his order amended his report date for attendance at Phase II 91C course to 16 May 1979.  The endorsement stated that Class 9 starting date was from 17 May 1979 to 10 August 1979, 12 weeks.

4.  His disciplinary history includes his acceptance of nonjudicial punishment on 
6 August 1979, under the provisions of Article 15, Uniform Code of Military Justice for being AWOL from 30 July 1979 to 2 August 1979 and failing to go to his appointed place of duty on 4 August 1979.

5.  On 6 August 1979, he was recommended to be relieved from the 91C course, based on his personal conduct and being unsuitable for the MOS.  The recommendation was approved on 22 August 1979.

6.  An incomplete charge sheet, undated, shows the applicant was AWOL on
4 September 1979.  This form does not show when he returned to military control.

7.  The complete charge sheet or the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are not contained in his available military records.

8.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged for the good of the service in lieu of a trial by court-martial on 
7 October 1980, under the provisions of Army Regulation 635-200, chapter 10.  It shows his service was characterized as under other than honorable conditions.  It further shows he completed 3 years, 8 months, and 24 days of total active service with the periods from 30 July 1979 to 1 August 1979 and 4 September 1979 to 20 August 1980 listed as lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an 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 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  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 3-7a, 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.

12.  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 previous honorable service was considered.  However, this does not sufficiently mitigate his misconduct.  

2.  Although, his reenlistment documents show he reenlisted for a bonus, there is no evidence and he has not provided any to show how the bonus was to be paid. Likewise, there is no evidence to show that there was a breach in his reenlistment contract due to the course length for 91C being changed and that his JAG attorney advised him to go AWOL.  

3.  The evidence of record shows he was scheduled to attend 91C Phase II Course on 17 May 1979 through 10 August 1979.  Prior to the completion of the course, he went AWOL on 30 July 1979 and remained AWOL until 2 August 1979.  On 6 August 1979, he was recommended and later approved to be relieved from the course due to his personal conduct and MOS unsuitability.

4.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, it appears he was charged for being AWOL from 
4 September 1979 to 20 August 1980.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial. It is also presumed that 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.

5.  Additionally, his argument that the discharge he signed guaranteed him all VA benefits with the exception of burial is unsubstantiated.  As cited above, the loss of VA benefits is normally associated with a discharge characterized as under other than honorable conditions.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110017947





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ABCMR Record of Proceedings (cont)                                         AR20110017947



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