IN THE CASE OF:	  

		BOARD DATE:  29 November 2012

		DOCKET NUMBER:  AR20120008855 


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 his discharge under other than honorable conditions (UOTHC) be upgraded to general, under honorable conditions.

2.  The applicant states he was told he would receive a general discharge.  He wants this upgrade so he can receive Department of Veterans Affairs (VA) benefits.

3.  The applicant provides the following:

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)

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.  On 13 July 1974, the applicant enlisted in the Kansas Army National Guard.  He was subsequently ordered to active duty training.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 18 October 1978, the applicant was ordered to active duty.  His subsequent duty status was as follows:

	a.  18 October 1978:  Assigned not joined and absent without leave (AWOL);

	b.  6 November 1978:  Assigned to the Reception Station, Fort Stewart, Georgia;

	c.  20 November 1978:  Assigned to 2nd Battalion, 21st Infantry Regiment, Fort Stewart, Georgia;

	d.  13 April 1979:  AWOL; and

	e.  1 June 1979:  Returned to military control at Fort Carson, Colorado.

4.  On 8 June 1979, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period 13 April to
1 June 1979.

5.  On 11 June 1979, the applicant 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.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

7.  On 22 June 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 11 July 1979, the applicant was discharged accordingly.  He had completed a total of 11 months and 24 days of creditable active duty service and had accrued 68 days of time lost.

8.  On 9 May 1983, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge 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.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to general, under honorable conditions because he was told he would receive a general discharge and now desires to receive VA benefits.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no available documentary evidence showing that the applicant was promised a general, under honorable conditions, discharge.

4.  The applicant's desire to obtain VA benefits is not justification to upgrade his discharge.

5.  In view of the above, the applicant's request should be denied.



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)                                         AR20120008855





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ABCMR Record of Proceedings (cont)                                         AR20120008855



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