Search Decisions

Decision Text

ARMY | BCMR | CY2012 | 20120000632
Original file (20120000632.txt) Auto-classification: Denied

		

		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 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 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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000632



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2012 | 20120003344

    Original file (20120003344.txt) Auto-classification: Denied

    On 5 March 1998, the Army Discharge Review Board denied his request of an upgrade of his discharge and determined his discharge had been both proper and equitable. His record of service shows he was AWOL for 108 days when he was returned to military control and he stated this was his second period of AWOL. Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

  • ARMY | BCMR | CY2009 | 20090001785

    Original file (20090001785.txt) Auto-classification: Denied

    The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. On 29 October 1990, the applicant was discharged with a characterization of service of under other than honorable conditions. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.

  • ARMY | BCMR | CY2011 | 20110009694

    Original file (20110009694.txt) Auto-classification: Denied

    On 9 January 1990, having consulted with counsel, he voluntarily requested 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. On 29 January 1990, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. Although an...

  • ARMY | BCMR | CY2013 | 20130009189

    Original file (20130009189.txt) Auto-classification: Denied

    The applicant again went AWOL from 3 to 8 January 1990; however, the record is silent as to the punishment imposed for that offense. The applicant went AWOL on 10 August 1990 and remained absent in a desertion status until he surrendered to military authorities at Fort Benning, Georgia on 27 February 1992, 1 year, 5 months, and 17 days later. On 14 April 1992, the appropriate authority approved his request for discharge and directed the applicant be given an under other than honorable...

  • ARMY | BCMR | CY2008 | 20080006417

    Original file (20080006417.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 27 February 1991 the applicant was formally charged with the offense of AWOL.

  • ARMY | BCMR | CY2013 | 20130006776

    Original file (20130006776.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge. Although he may have served honorably for part of his military service, this was acknowledged by the remark on his DD Form 214 that shows he had continuous honorable active service from 10 October 1984 to 21 June 1987.

  • ARMY | BCMR | CY2014 | 20140013007

    Original file (20140013007.txt) Auto-classification: Denied

    The applicant requests an upgrade of his discharge under other than honorable conditions. On 6 May 1992, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.

  • ARMY | BCMR | CY2010 | 20100014612

    Original file (20100014612.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded. 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.

  • ARMY | BCMR | CY2012 | 20120010893

    Original file (20120010893.txt) Auto-classification: Denied

    The applicant requests an upgrade of his under other than honorable conditions discharge to an honorable discharge. On 23 January 1992, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

  • ARMY | BCMR | CY2013 | 20130002038

    Original file (20130002038.txt) Auto-classification: Denied

    The applicant requests that his discharge under other than honorable conditions be upgraded to a fully honorable discharge and that he be restored to the pay grade of E-4. On 15 December 1989, after consulting with defense counsel, the applicant submitted a request for 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. On 28 March 1990, the appropriate authority...