IN THE CASE OF:	  

		BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110019741 


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 discharge to honorable.  

2.  He states he is requesting an upgrade so he may receive health services from the Department of Veterans Affairs (VA).  He had surgery performed on his jaw while he was on active duty.  The surgeon performed the surgery on the incorrect side, and he needs to have that repaired.  He states he was due to be discharged from the Army on his expiration term of service (ETS) date of             31 January 1994, but an incident occurred with possible stolen property, and he was told he could not ETS and would need to remain in the service to face a court-martial.  He went absent without leave (AWOL), as he strongly believed it was more important to be with his pregnant wife, especially as he had not stolen anything.  He also believes there was an injustice, as he had completed his entire first term with no disciplinary actions, yet the Army felt it necessary to stop his separation pending the court-martial.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 31 January 1991, the applicant enlisted in the Regular Army for a period of 3 years.  Based on his enlistment contract, his ETS was 30 January 1994.

3.  A DD Form 458 (Charge Sheet) shows, on 17 December 1993, he was informed he was charged with:

* conspiring with a civilian to commit housebreaking and larceny of private property 
* stealing several items collectively worth approximately $2,000 
* unlawfully entering a barracks room at Fort Bliss, TX, with the intent to commit larceny

4.  The charges were referred for trial by general court-martial.

5.  A second DD Form 458, signed by the accuser on 16 February 1995, shows he was charged with being AWOL from 30 December 1993 to an unknown date.

6.  DD Forms 616 (Report of Return of Absentee) in his record show he returned to military control in March 1995.  The forms show he was dropped from the rolls (DFR) of his unit on 29 January 1994.  On 1 March 1995, he was apprehended and confined by civilian authorities for attempted murder, shooting an inhabited dwelling, and assault with a weapon.  His unit was contacted regarding pending military charges against him and indicated all charges had been dropped when he was DFRd.  He was to be outprocessed by mail due to the length of his confinement.  

7.  The complete facts and circumstances of his discharge processing are not included in the available records.  However, he provides a properly-completed DD Form 214 that shows, on 3 February 1997, he received an under other than honorable conditions discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 3 years, 1 month, and 2 days of active service with 1,051 days of time lost.

8.  On 14 January 1999, the Army Discharge Review Board (ADRB) denied a request from the applicant.  Neither his request nor the ADRB's decision is available for review.

9.  The Manual for Courts-Martial states if action with a view to trial is initiated before discharge, a person may be retained beyond the date that the period of service would otherwise have expired.  

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

   a.  Chapter 10 of the version in effect at the time provided that a member who had 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and had to include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.
   
   b.  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.  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 evidence of record does not support the applicant's request for upgrade of his discharge.  

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits.

3.  His record does not include the complete facts and circumstances surrounding his discharge.  However, the record does show he was charged with conspiring to commit housebreaking and larceny of private property, stealing, unlawfully entering a barracks room with the intent to commit larceny, and AWOL.  Each of these offenses was punishable under the UCMJ with a punitive discharge.  Further, it appears that, while AWOL, he was charged by civilian authorities with attempted murder, shooting an inhabited dwelling, and assault with a weapon.  

4.  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 admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  In his voluntary request for discharge in lieu of trial by court-martial, he would have admitted guilt to an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge.

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)                                         AR20110019741





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ABCMR Record of Proceedings (cont)                                         AR20110019741



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