BOARD DATE: 12 June 2012
DOCKET NUMBER: AR20120000632
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 to general.
2. The applicant states he did his mail-in letter and was told his discharge would be changed to general. He states he "did everything [he] was asked to do back in 1990 so these changes would take place." He needs the upgrade so he can receive help from the Department of Veterans Affairs (VA).
3. The applicant provides a copy of 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 applicants 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 applicants 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 as a private/pay grade E-2 on 8 September 1987.
3. He completed one-station unit training as an artilleryman at Fort Ord, CA, and served without a notable incident until he was absent without leave (AWOL) on 11 October 1988. He was apprehended on 4 September 1989.
4. When court-martial charges were preferred for this period of AWOL, the applicant consulted with counsel and 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 indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized. He acknowledged he would receive a discharge under other than honorable conditions. He also understood he would be deprived of many or all Army benefits and he might be ineligible for benefits administered by the VA. He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.
5. The chain of command recommended approval of the applicant's request and separation with a discharge under other than honorable conditions. The separation authority approved the applicant's voluntary request and directed his discharge under other than honorable conditions.
6. On 6 March 1990, the applicant was so discharged. He completed 1 year, 6 months, and 5 days of creditable service and had 10 months and 24 days of lost time due to AWOL.
7. There is no evidence of record to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.
8. Army Regulation 635-200 sets forth 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 under other than honorable conditions is normally considered appropriate.
b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. 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 request for discharge under the provisions of chapter 10, even after appropriate and proper consultation with a military lawyer, indicates he wished to avoid the court-martial and punitive discharge he might have received. Thus, his misconduct and his actions to avoid the consequences became the determining factors in the characterization of his service.
2. In view of the foregoing, there is no basis for granting the 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) AR20120000632
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