IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110020179 


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 undesirable discharge be upgraded to general under honorable conditions and correction of his DD Form 214 (Report of Separation from Active Duty) to show his combat service.

2.  The applicant states he was told that his records were burned when "regional" gave him a paper stating he had an honorable discharge.  He was then issued a DD Form 214 indicating he had a bad discharge.  He contends he was diagnosed with service-connected post-traumatic stress disorder and is currently receiving treatment.  He needs the character of his discharge straightened out in order to file a claim.

3.  The applicant provides a letter from a Department of Veterans Affairs (VA) regional office.

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 April 1976.  Upon completion of initial entry training he was awarded military occupational specialty 94B (Food Service Specialist).

3.  He accepted nonjudicial punishment on 10 November 1976 for being absent without leave (AWOL) during the period 14-29 October 1976.

4.  Two DA Forms 4187 (Personnel Action) indicate he was reported AWOL on 23 December 1976 and returned to military control on 24 March 1977 when he surrendered to military authorities.

5.  On 30 March 1977, court-martial charges were preferred against him for the AWOL offense.

6.  On 31 March 1977, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

7.  He acknowledged that by requesting discharge, he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood he could be issued a discharge under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

8.  On 12 April 1977, the separation authority approved his request for discharge and directed issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 20 April 1977, he was discharged accordingly.  His DD Form 214 shows he served 8 months and 16 days of creditable active duty service and accrued 106 days of lost time.

9.  There is no evidence showing he was ever deployed in support of a contingency operation or that he participated in combat while serving on active duty.

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 17 May 1979.

11.  He provides a letter from a VA regional office, dated 4 January 2000, that indicates he was given an honorable characterization of service "as certified to the VA by the military branch of service or as shown on official military documents."

12.  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.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting that his undesirable discharge be upgraded to general in order to file a claim to the VA and correction of his DD Form 214 to show his combat service.

2.  The ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for VA benefits.  Additionally, there is no evidence showing he was ever given an honorable characterization of service as indicated on the VA letter provided.

3.  The evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request he admitted guilt to the charges that also authorized the imposition of a bad conduct or dishonorable discharge.

4.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

5.  His record of indiscipline includes nonjudicial punishment, a court-martial charge for AWOL, and 106 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  There is no evidence showing he was ever deployed in support of a contingency operation or that he participated in combat while serving on active duty.  Therefore, there is no basis to correct his DD Form 214 to show any combat service.

7.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110020179



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020179



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1