IN THE CASE OF:	  

		BOARD DATE:	    2 October 2012

		DOCKET NUMBER:  AR20120006660 


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 to general under honorable conditions.

2.  The applicant states he has been having trouble determining what Department of Veterans Affairs (VA) benefits and programs he qualifies for.

3.  The applicant provides no additional evidence.

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 23 May 1985.  He was trained in and awarded military occupational specialty 31C (Single Channel Radio Operator).

3.  The applicant was advanced to private/E-2 on 23 November 1985 and this is the highest rank he attained while serving on active duty.

4.  On 4 January 1986 after failing to report for overseas assignment to Germany, the applicant was declared absent without leave (AWOL).  He remained away for 172 days until returning to military control at Fort Knox, Kentucky, on 25 June 1986.

5.  On 27 June 1986, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 4 January 1986 to on or about 25 June 1986.

6.  On 30 June 1986, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the rights and procedures available to him, he 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.

7.  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 discharge under other than honorable conditions.  He further stated he understood that receipt of a discharge under other than honorable conditions 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.  The applicant elected not to submit statements in his own behalf.

8.  On 9 July 1986, the separation authority approved the applicant's request for discharge with an under other than honorable conditions character of service and reduction to private/E-1.  On 7 August 1986, 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 8 months and 24 days of creditable active service with 172 days of lost time due to AWOL.  It also shows he was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and First Class Qualification Badge with Hand Grenade Bar.

9.  There is no indication the applicant ever petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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.  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 to general under honorable conditions in order for him to determine what VA benefits he is eligible for has been carefully considered.  However, a discharge may be upgraded by the ADRB or this Board only if there is evidence of error or injustice in the discharge process.  Eligibility for benefits is not a basis to support upgrading a discharge.

2.  The evidence of record 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.

3.  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 the fact that he was fully informed of the implications of a discharge under other than honorable conditions e by legal counsel, his argument that his discharge was unjust is not sufficiently credible to support relief.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120006660



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ABCMR Record of Proceedings (cont)                                         AR20120006660



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