BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120007563 


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 discharge to a general discharge.

2.  The applicant states the Department of Veterans Affairs (VA) determined his character of discharge was favorable.

3.  The applicant provides:

* A DVA letter, dated 8 November 2002
* 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 9 November 1982 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 31Y (communications system supervisor).  On 29 October 1986, he was honorably discharged for immediate reenlistment.  He reenlisted on 
30 October 1986 for a period of 3 years.

3.  He was absent without leave (AWOL) from 29 December 1987 to 6 April 1988.  On 27 April 1988, court-martial charges were preferred against the applicant for this period of AWOL.

4.  On 27 April 1988, having consulted with counsel, and 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.  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 conditions other than honorable, 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.  On 8 June 1988, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

6.  On 7 July 1988, he was discharged accordingly with an under other than honorable conditions discharge.  He completed 5 years, 4 months, and 22 days of creditable active service with 98 days of time lost.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

8.  He provided a VA letter, dated 8 November 2002, that states:

* the character of his discharge determination is favorable
* his discharge from military service on 29 October 1986 has been found to have been issued under conditions that allow for the payment of VA benefits
* his period of service upon which that discharge was based qualifies him for the benefit for which he applied, or for any other gratuitous benefit under laws administered by the VA
9.  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 under other than honorable conditions 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.

10.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military…service when the following conditions are met: …(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his character of service should be changed from under other than honorable conditions to a general discharge because the VA determined his character of discharge was favorable.  However, the VA determined his honorable discharge on 26 October 1986 from his first enlistment 


was favorable for benefits.  Since he was honorably discharged on 26 October 1986 for the purpose of immediate reenlistment, it appears the VA is statutorily required to treat him for any conditions that arose during his first period of service.

2.  His record of service during his last enlistment included 98 days of time lost.  As a result, his record of service was not satisfactory.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

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

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20120007563



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ABCMR Record of Proceedings (cont)                                         AR20120007563



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