IN THE CASE OF: 

		BOARD DATE:	    4 January 2013

		DOCKET NUMBER:  AR20120011094 


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 an under honorable conditions (general) discharge.

2.  The applicant states he went through a very emotional divorce in October 1991.  At the time, he had a son who was 3 years old.

   a.  He enlisted in the U.S. Army in January 1992.  He attended basic combat training and advanced individual training at Fort Jackson, SC.
During this period, he and his ex-wife were attempting to reconcile.

   b.  He completed training and was reassigned to Fort Drum, NY.  This made it difficult for him to continue to reconcile with his ex-wife and reunite with his son.

   c.  In July 1994, he went absent without leave (AWOL) and returned home to Kansas City, MO, for two and one-half days.  When he returned to his unit, he was relieved of duty and discharged in lieu of being tried by court-martial.

   d.   A review of his records will show he served honorably prior to the incident.

   e.  He is currently homeless and in need of treatment for substance abuse.  Upgrade of his discharge will help him in his efforts to obtain veterans benefits.

3.  The applicant provides copies of several documents from his military service records 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 8 January 1992 for a period of 
4 years.  He was awarded military occupational specialty 94B (Food Service Specialist).

3.  Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ):

* Article 86, for absenting himself from his unit from 20 July to 25 July 1994
* Article 121, for wrongfully appropriating a 1983 Nissan Pulsar, the property of another Soldier

4.  The applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, 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.

	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 Department of Veterans Affairs, 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 conditions discharge.

	b.  He was also advised that he could submit statements if he desired in his own behalf.  

	c.  The applicant and his counsel placed their signatures on the document.
   d.  His counsel submitted a statement on behalf of the applicant.  He requested consideration of a general discharge in the applicant's case.

    	(1)  The basis of his request was that the applicant had been physically separated from this wife and son for over two and one half years.  During this period, his consumption of alcohol increased.

    	(2)  At the time of the incident, fueled by alcohol, the applicant made a rash decision to return home to his family.  The applicant's behavior was a dramatic departure from his normal behavior and, when he realized what he had done, he voluntarily returned to military control.

5.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge.

6.  The separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 September 1994 in accordance with Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.

   a.  He completed 2 years, 7 months, and 24 days of active service.

   b.  He was awarded the Army Commendation Medal, Army Achievement Medal (2nd Award), National Defense Service Medal, Humanitarian Service Medal, and Army Service Ribbon.

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

9.  In support of his application, the applicant provides documents from his military service records that show he:

* qualified to operate 3/4-ton, 1 1/4-ton, and 5-ton trucks on 7 April 1993
* completed the Defense Hazardous Materials Waste Handling course on
2 June 1993
* was laterally appointed to corporal effective 7 June 1993
* qualified with his individual weapon on 6 August 1993
* was awarded the Army Commendation Medal and Army Achievement Medal (2nd Award)
* was recommended for promotion to sergeant on 1 February 1994
* participated in the 19th Annual U.S. Army Culinary Competition at Fort Lee, VA, in February - March 1994
* passed the Army Physical Fitness Test on 15 April 1994

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an under other than honorable conditions discharge was 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general discharge because he served with honor prior to the incident that led to his discharge; however, his emotional state at the time contributed to his actions.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  He acknowledged he understood that he might be discharged under other than honorable conditions.  In addition, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Thus, the characterization of service was appropriate and equitable.

3.  The applicant's contentions, the supporting documents he provided, and the evidence of record were carefully considered.

   a.  The applicant attained the rank of corporal (pay grade E-4), he earned the Army Commendation Medal and Army Achievement Medal (2nd Award), and he successfully completed several qualification/training courses.

   b.  Records show the applicant was charged under the UCMJ, Article 121, for wrongfully appropriating a privately owned vehicle, and Article 86, for being AWOL from 20 to 25 July 1994.  As a result, he elected to request discharge in lieu of being court-martialed.

   c.  He completed only about 2 years and 8 months of his 4-year enlistment obligation.  Moreover, the offenses that led to his discharge outweigh his overall record of service during the period under review.

   d.  Considering all of the facts of the case, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care (and other benefits) should be addressed to the Department of Veterans Affairs or appropriate government agency.

5.  Therefore, in view of the foregoing, there is an insufficient 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)                                         AR20120011094



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ABCMR Record of Proceedings (cont)                                         AR20120011094



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