BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120009114 


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 correction of his under other than honorable conditions discharge for the good of the service - in lieu of court-martial.

2.  The applicant states his medical issues weren't taken into consideration when he was discharged.

3.  The applicant provides a list of his current medications (that include Metoprolol Tartrate, Keppra, Multivitamins, and Vitamin C); United Healthcare card; and Ohio Driver License in support of his application.

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 16 September 1980 for a period of 3 years.  He was awarded military occupational specialty 11B (Infantryman).

3.  The applicant received nonjudicial punishment for his misconduct on three occasions (i.e., 22 October 1981, 28 January 1982, and 16 March 1983).

4.  He was convicted by special-court martial on 31 August 1982.

5.  Court-martial charges were preferred against the applicant for being absent without leave from 17 April to 17 June 1983.

6.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable discharge.

	b.  He was also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	c.  The applicant and his counsel placed their signatures on the document.

7.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.

8.  The separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 August 1983 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

	a.  He had completed 2 years, 8 months, and 29 days of net active service.
	b.  He had 61 days of time lost under Title 10, U.S. Code, section 972.

10.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 shows 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.  It also shows that disability processing is inappropriate in separation actions under chapter 10.
6.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the personnel qualification record, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

	b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  The instructions for completing item 12b state to enter the Soldier's transition date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions discharge for the good of the service - in lieu of court-martial should have taken into consideration his medical issues.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show he had any "medical issues" during the period of service under review.  In any event, the evidence of record shows that disability processing is inappropriate in separation actions under chapter 10.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  Therefore, there is no basis for granting the 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 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)                                         AR20120009114



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ABCMR Record of Proceedings (cont)                                         AR20120009114



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