IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20120006707 


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 from under other than honorable conditions (UOTHC) to honorable or general.

2.  The applicant also requests his GI Bill benefits, if available.

3.  The applicant states he is requesting an upgrade to his discharge because:

* He feels he was not of age to make a future decision 
* He was given ineffective counsel, his choice has forever followed him in life
* If he had known what he knows today, he would not have made the decision he made
* Please look at his records, he was young and foolish to go absent without leave (AWOL) because his wife was not able to go overseas with him
* He is no longer married
* He is still trying to better himself

4.  The applicant also states he paid for the GI Bill, but never used it.  

5.  The applicant provides a one page self-authored statement.

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 4 September 1986, at age 21, and he completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private /E- 1. 

3.  On 1 April 1988, court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 9 July 1987 through 21 September 1988.

4.  On 1 April 1988, the applicant acknowledged he had consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

5.  On 1 April 1988, the applicant submitted a voluntary written 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.  

6.  In his request for discharge he indicated he understood by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge UOTHC.  He acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

7.  The applicant provided a self-authored statement in which he states at the time of his enlistment, his recruiter, SSG J____B___, told him not to say anything about his medical history.  He states that after completing his training, he started having problems with lifting and being able to perform his job 100 percent, which caused him to seek medical care.  He states because his medical records didn't have any medical history, he confessed to his doctor what the recruiter told him to say at the time of enlistment.  He further states because his wife was not coming to his duty station, he decided to go AWOL.

8.  On 14 April 1988, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed a UOTHC discharge.

9.  On 25 April 1988, the applicant was discharged accordingly.  He was credited with 10 months and 2 days of total service, and 258 days of lost time.

10.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

12.  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.

13.  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.  The applicant's contentions were carefully considered, and was found not to be sufficiently mitigating to upgrade his discharge.

2.  The applicant's records show he was 22 years of age at the time of his AWOL.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  There is no evidence in his military record and he has not provided any evidence to show he sought assistance from his chain of command for his personal and family issues.
 
4.  The applicant's request for separation for the good of the service to avoid a trial by court-martial under the provisions of chapter 10 of Army Regulation    635-200 was voluntary, administratively correct, and in compliance with applicable regulations.

5.  The evidence shows the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time and that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.

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)                                         AR20120006707





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ABCMR Record of Proceedings (cont)                                         AR20120006707



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