IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110022731 


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: 

	a.  While he was pending a medical discharge from the Army he was charged with civilian offenses.  He hired a civilian lawyer and the charges were dropped.   

	b.  He returned to his unit and received his medical discharge.  While waiting to ship home he was advised his commanding officer was trying to reactivate him so he could bring him to trial.  He used his rank to get an Article 32 hearing.  At this time, his request for a civilian lawyer was denied and he was not allowed to say anything.  When the commanding officer was asked what the charge would be he indicated the applicant would be convicted on association.  His civilian lawyer's advice was to fight this on the outside.

	c.  He took his lawyer's advice for 5 years and tried to resolve this matter.  He was told he had to return to resolve this matter and he did.  His lawyer was in contact with the Army.  Fort Eustis did not want to deal with this matter.  He had a medical discharge and they sent him to Fort Knox and there they did not know how to deal with this matter because he did not have a copy of his original 
DD Form 214 (Certificate of Release or Discharge from Active Duty).  He was offered a discharge for being absent without leave (AWOL).  He was told he could get his discharge changed.  He only took the discharge because his son was having seizures.      
	d.  He was 25 years old when this happened and before that he had no legal problems.  He is now 46 years old and has never been to jail on charges of any kind.  He is a Mason and composer/songwriter for Broadcast Music, Inc.  He was wrongfully charged $1,863.44 by the Army for items already turned in.  He is in need of medical care. 

3.  The applicant provides two 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 5 September 1989.  He completed his training and was awarded military occupational specialty 88M (Motor Transport Operator).  

3.  In 1990, he was charged by civil authorities in Newport News, VA of forgery and uttering of checks.  He apparently was also under investigation for larceny of blank checks occurring on Fort Eustis and the use of cocaine detected through urinalysis.  A flagging action was initiated on 23 October 1990 and again on 
2 January 1991.

4.  A memorandum for record, dated 26 March 1991, indicates that on 20 November 1990 an Assistant Commonwealth's Attorney for the City of Newport News, VA moved to nolle pros the charges against the applicant.  (Nolle pros - to proceed by way of discontinuance.  In proceedings either by indictment or by information, a nolle prosequi or stay of proceedings may be entered by the attorney general.)  The reason for dismissing those charges, without prejudice to the Commonwealth, (emphasis in the original), was that a necessary witness was deployed to Saudi Arabia and the Commonwealth did not have the power to bring him back to testify.  No evidence was ever presented to the court, no determination of guilt or innocence was ever made, and the applicant could not claim the protection of the Constitutional prohibition against double jeopardy if the charges were ever prosecuted in the future.

5.  On 12 April 1991, the U. S. Total Army Personnel Command authorized the applicant's discharge for physical disability with severance pay rated at 20 percent.  The Medical Evaluation Board and Physical Evaluation Board paperwork is not available.  The disability apparently was related to a herniated disc.

6.  In May 1991, charges were preferred against the applicant charging him with conspiracy to commit forgery of certain checks, forgery, and wrongful use of cocaine sometime between 30 July and 1 August 1990.  The applicant's commander recommended he be tried by general court-martial.  

7.  He departed AWOL on 3 July 1991 and returned to military control on 
15 August 1995.

8.  On 1 September 1995, charges were preferred against the applicant for the AWOL period.

9.  On 1 September 1995, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service in lieu of trial by court-martial.  He acknowledged he was guilty of the AWOL charge against him which authorized the imposition of a bad conduct or dishonorable discharge and that he did not desire further rehabilitation nor had any desire for further military service.  He stated that he understood the nature and consequences of receiving a discharge under conditions other than honorable.  He submitted a statement in his own behalf wherein he stated he accepted the discharge because he was needed at home with his wife and son and physically could not perform his military duties due to a spine injury.  He hoped the discharge would allow him to receive medical care.

10.  On 27 September 1995, the separation authority approved the applicant's request and directed he receive a discharge under other than honorable conditions.

11.  On 19 October 1995, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a discharge under other than honorable conditions.  He had completed 2 years and 3 days of creditable active service and had 1,504 days of lost time.

12.  He provided two character reference letters from a composer/songwriter and a Masonic Lodge Member.  They attest the applicant:

* is creative and talented
* is a fair-minded businessman
* is reliable, caring, and giving
* has been a Masonic Fraternal Brother in good standing since 1998
* is honest and dependable.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  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.

15.  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.

16.  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.

17.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.





DISCUSSION AND CONCLUSIONS:

1.  Evidence shows:

   a.  The civil charges against the applicant were dismissed in 1990 because a necessary witness was deployed to Saudi Arabia and the Commonwealth did not have the power to bring him back to testify.  

   b.  The initial military charges against the applicant were not dropped.  He went AWOL before any judicial action could be taken.  It appears the Army later decided to charge him only with AWOL as a matter of convenience.

   c.  He made the decision not to continue with the court-martial process, first by departing AWOL and, second, by admitting to guilt of the AWOL charge and requesting discharge in lieu of trial by court-martial.  He was first charged with an offenses for which he could have been given a punitive discharge.  After his return from AWOL he requested a separation which authorized a characterization of service of under other than honorable conditions.  Both of those actions meant that he could not continue physical disability processing to include physical disability separation.  

2.  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.  

3.  His record of service included 1,504 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  He contends he was told he could get his discharge changed.  However, a discharge upgrade is not automatic.

5.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

6.  He contends he is in need of medical care.  However, a discharge is not upgraded for the purpose of obtaining medical treatment.

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



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)                                         AR20110022731



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ABCMR Record of Proceedings (cont)                                         AR20110022731



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