IN THE CASE OF:	  

		BOARD DATE:	    19 July 2012

		DOCKET NUMBER:  AR20120001534 


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.

2.  The applicant states he:

* was told he was getting a general discharge and it would be changed to an honorable discharge after 6 months 
* was on medical hold prior to going absent without leave (AWOL)
* was given back pay
* had no idea his discharge was not honorable
* was going to use a Department of Veterans Affairs (VA) hospital when he was told he needed his discharge upgraded

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service personnel records

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 22 April 1985 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (Infantryman).  Records show he was a patient on medical hold from 9 December 1985 to 17 January 1986.  

3.  He went AWOL from 18 January to 16 April 1986.  Charges were preferred against the applicant for the AWOL period on 17 April 1986.  Trial by special court-martial was recommended.

4.  On 18 April 1986, he consulted with counsel and 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 that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under other than honorable conditions, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

5.  In an interview with his unit commander, the applicant indicated he went AWOL for personal reasons.

6.  On 28 April 1986, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  On 6 May 1986, 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 an under other than honorable conditions discharge.  He completed a total of 9 months and 17 days of creditable active service with 88 days of lost time.

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

9.  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.

10.  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.

11.  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.  

12.  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.  The applicant contends he was told he was getting a general discharge.  However, the evidence shows he consulted with counsel on 18 April 1986 and requested a discharge for the good of the service in-lieu of trial by court-martial.  
He acknowledged in his request that he understood he might be discharged under other than honorable conditions.

2.  He also contends he was told his discharge would change to honorable after 
6 months.  However, a discharge upgrade is not automatic.


3.  A discharge is not changed for the purpose of obtaining VA benefits.

4.  His brief record of service included 88 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  His voluntary request for discharge 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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

6.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

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

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)                                         AR20120001534



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ABCMR Record of Proceedings (cont)                                         AR20120001534



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