IN THE CASE OF:  

		BOARD DATE:  11 December 2012

		DOCKET NUMBER:  AR20120010729 


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, in effect, his under other than honorable conditions (UOTHC) discharge be upgraded to honorable and removal of the narrative reason for separation on his DD form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that:

	a.   he was injured in an accident, receiving two broken legs.  When he told a captain (CPT) at Fort Ord, California, that he would need 2 more months in a wheelchair and many more months of therapy, the CPT informed him he would be discharged. The discharge would be no less than honorable and would be upgradeable in 6 months. 

	b.  he was shocked to see the narrative reason for separation "For the good of the service -- in lieu of court-martial" on his DD Form 214.  He doesn't know how the statement was entered on his DD Form 214.  He was unable to make an informed judgment because all alternatives had not been discussed.

	c.  he is extremely proud to have served his country and would like to say so, but cannot with a DD Form 214 that falsely represents his honest efforts.     

3.  The applicant provides six pages of medical documentation covering his hospitalization from 31 May to 4 June 1988, and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 
22 May 2012.
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 25 February 1987.  He completed training, to include basic airborne training, and he was awarded military occupational specialty 82E (Heavy Construction Equipment Operator).

3.  His DA Form 2-1 (Personnel Qualification Record) shows that he completed airborne training on 14 August 1987.  He departed en route to Germany, and was reported absent without leave (AWOL) from 17 August 1987 until 7 July 1988.

4.  On 11 July 1988, charges were preferred against him for the 17 August 1987 - 7 July 1988 AWOL.
 
5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge UOTHC, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will

6.  The separation authority approved the applicant's request on 27 July 1988, and on 5 August 1988, the applicant was so separated.  He had 1 year, 5 months and 11 days of creditable active service as shown on a DD Form 215 (Correction of DD Form 214, Certificate of Release or Discharge from Active Duty) dated 
5 July 1988.  His DD Form 214 shows he was issued a UOTHC discharge under the provisions of Army Regulation 635-200, chapter 10.  The narrative reason is shown as "For the good of the service –in lieu of court-martial." 

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

8.  The applicant provides medical documentation from the Ukiah Adventist Hospital, Ukiah, California, that shows:

	a.  he was admitted there on 31 May 1988, complaining of pain in the right ankle and left knee following a fall.

	b.  surgery was performed on his left knee and right ankle.  A design splint was applied to his left knee and a stirrup splint of plaster and foam to the right ankle.

	c.  he was discharged on 4 June 1988.  He was prescribed medication for pain, and a rental wheelchair with elevated leg supports.  A follow-up was scheduled for 14 June 1988.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a states 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 states 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 for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was characterized by the nature of the offense for which he wished to avoid punishment.  Therefore, the narrative reason on his DD Form 214 corresponds to the authority and reason for his discharge.

2.  The available evidence shows he was hospitalized from 31 May to 4 June 1988.  His record shows he was AWOL from 17 August 1987 until 7 July 1988 AWOL.  He had been AWOL for over 9 months before he was hospitalized.

3.  There is no available evidence to substantiate he was told the discharge would be upgradeable in 6 months.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

4.  In view of the foregoing, there is no 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 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)                                         AR20120010729



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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