IN THE CASE OF:	  

		BOARD DATE:	    24 July 2012

		DOCKET NUMBER:  AR20120001774 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he has become totally disabled due to physical disabilities/ injuries he sustained while serving on active duty and he needs assistance from the Department of Veterans Affairs (VA).  He goes on to state that he has grown not only as a person, but as a citizen of this great nation.  He also states that his only income is from Social Security and he has raised three children, one of whom is serving in Afghanistan at this time. 

3.  The applicant provides a one-page letter explaining his application and 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 on 18 February 1986 for a period of 4 years and training as a construction equipment repairer.  He completed one-station unit training at Fort Leonard Wood, Missouri and was transferred to Fort Carson, Colorado for his first and only duty assignment on 27 August 1986.

3.  On 5 January 1987, a bar to reenlistment was imposed against him for writing 24 dishonored checks.

4.  His records also show that he went absent without leave (AWOL) from 2 October to 5 October 1987, 15 October to 25 October 1987, and from 22 November to 23 November 1987.  The record is silent as to any punishment imposed for these offenses.

5.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the VA in Muskogee, Oklahoma on 6 February 1997.  However, his records contain a DD Form 214 which shows he was discharged under other than honorable conditions on
4 January 1988 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year and 10 months of active service. 

6.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations.

7.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary it must be presumed that the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he would have admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated absences, undistinguished record of service, and his short period of service.  His service simply did not rise to the level of a general discharge.

4.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.  Accordingly, there appears to be no basis to grant his request for an upgrade of his discharge.

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)                                         AR20120001774



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ABCMR Record of Proceedings (cont)                                         AR20120001774



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