IN THE CASE OF:	  

		BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120005448 


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 upgrade of his under other than honorable conditions (UOTHC) discharge so he can use the Department of Veterans Affairs (VA) hospital.

2.  The applicant states he was told his discharge would be upgraded after 6 months.

3.  The applicant provides no documentary evidence in support of his request.

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 5 April 1993.  He was trained in and awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).

3.  The applicant's record shows he was advanced to private first class (PFC)/E-3 on 9 April 1994, and this is the highest rank/grade he attained while serving on active duty.

4.  On 2 September 1994, while stationed in Korea, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer (NCO) and for failing to pay a just debt (taxi fare).  

5.  Upon completion of his tour of duty in Korea, he was reassigned to Fort Campbell, KY for his next assignment.

6.  On 27 March 1995, the applicant departed absent without leave (AWOL) from his unit at Fort Campbell.  He was dropped from the rolls (DFR) of his unit on
25 April 1995.  On 28 July 1995, he was apprehended by civilian authorities for robbery and placed in confinement at Denton, TX.  He was subsequently returned to military control on 3 November 1995 at Fort Sill, OK.  He was absent for 222 days.

7.  On 8 November 1995, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 27 March 1995 to on or about
3 November 1995.

8.  On 9 November 1995, the applicant consulted with legal counsel.  After being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, 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.

9.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if 


his request for discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  

10.  In addition, the applicant acknowledged in his request for discharge that he understood there would be no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished review of his discharge.  He further confirmed he understood the act of consideration by either of these boards did not imply that his discharge would be upgraded.  The applicant also elected not to submit statements in his own behalf. 

11.  On 12 January 1996, the separation authority approved the applicant's request for discharge with a UOTHC discharge.

12.  On 12 February 1996, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 2 years, 2 months, and 26 days of creditable active service with 222 days of time lost due to AWOL and confinement.

13.  There is no indication the applicant ever petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 UOTHC is normally considered appropriate.

	b.  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.
	c.  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's request to upgrade his discharge because he was told it would be automatically upgraded after 6 months has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant acknowledged his understanding that his discharge would not be automatically upgraded or reviewed, that any upgrade action had to be requested through the ADRB or this Board, and that a review by either board did not imply his discharge would be upgraded.

3.  The Army does not now have and has never had a policy that provided for an automatic upgrade of a discharge based solely on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either finds an error or injustice related to the discharge.

4.  The evidence of record also confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He could have elected to submit a statement voicing his current contentions; however, he elected not to do so.

5.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge.  Given the voluntary nature of his discharge request and absent any evidence of error or 
injustice related to his discharge processing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

6.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's 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 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)                                         AR20120005448



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ABCMR Record of Proceedings (cont)                                         AR20120005448



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