IN THE CASE OF: 

		BOARD DATE:  12 June 2012

		DOCKET NUMBER:  AR20110024757 


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 an upgrade of his discharge under other than honorable conditions (UOTHC) to general.

2.  The applicant states he did not do anything wrong.  He was given a choice of going home or going to jail.  An incident happened at Guantanamo Bay, Cuba.  He was sent home and the guys who were guilty of the charges were sent to jail.  He did not know he could have his discharge upgraded.  He is trying to receive Department of Veterans Affairs (VA) benefits for a knee injury that happened while he was serving on active duty.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 5101-R (Screening Note of Acute Medical Care).

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 23 April 1991 as a private first class/E-3.  He completed training and was awarded military occupational specialty 11B (Infantryman).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in item 9 (Awards, Decorations and Campaigns):

* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

4.  On 20 October 1992, charges were preferred against the applicant for the following violations of the Uniform Code of Military Justice (UCMJ):

* Article 107 – one specification of making a false official statement
* Article 134 – one specification of obtaining services under false pretenses of a value of $500.00 or less (approximately seven long-distance telephone calls).

5.  He consulted with counsel and he voluntarily 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 acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he would receive a discharge UOTHC, he would be deprived of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the VA.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.

6.  There is no available record showing the applicant's chain of command's recommendations on his discharge request.  The separation authority approved the applicant's request and directed his discharge UOTHC.  He was assigned a reentry eligibility (RE) code of 3.

7.  On 8 January 1993, the applicant was so discharged.  He completed 1 year, 8 months, and 16 days of net active service.  His DD Form 214 shows he was awarded or authorized the:

* Army Service Ribbon
* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

8.  A Standard Form 88 (Report of Medical Examination), dated 12 February 1997, does not contain any annotations concerning a knee injury.

9.  On 5 May 1997, the applicant was granted a waiver of his RE code and he was authorized to enlist in the Regular Army, which he did on 1 July 1997.  He served until 24 July 1997 when he was separated under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5, by reason of disability, existed prior to service-medical board.  He had completed 24 days of net active service for the period.

10.  The applicant provided a copy of a July 1997 DA Form 5101-R (Screening Note of Acute Medical Care) which shows he was seen for right knee pain.  He had a prior history of knee injury and he was being discharged due to the knee injury.  The applicant stated he had a motor vehicle accident 3 years prior and his knee had gotten worse.  The "Comments" section shows the applicant was "chaptered out for incident in Cuba (good of the svc, chap 10).  Recruiter told him not to worry about it….Fraudulent entry.  To 1SG/Cdr."

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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 UOTHC is normally considered appropriate.

	b.  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 his discharge should be upgraded because he did not do anything wrong.  He didn't know he could get his discharge upgraded.  He is trying to receive VA benefits for a knee injury that happened while he was on active duty.

2.  His contention that he did not do anything wrong is not supported by the evidence.  He made a false official statement and obtained services under false pretense (approximately seven long-distance telephone calls).

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation.

4.  If, as he states, he did nothing wrong then his request for discharge in lieu of trial by court-martial was made under false pretenses.  He was not discharged and sent home against his will, he asked for it.

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

6.  There is no available evidence showing he injured his knee while serving on active duty.

7.  The ABCMR does not upgrade discharges based on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20110024757



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