BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020459 


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 (UOTHC) discharge.

2.  The applicant states that he would like his discharge upgraded so he can obtain medical benefits.  He has been diagnosed with lung cancer.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certification of Health Care Provider

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 (RA) in pay grade E-1 on 3 February 1975.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was honorably discharged in pay grade E-5 on 10 August 1978, for the purpose of reenlistment.

3.  He reenlisted in the RA on 11 August 1978.  He served in Germany from 24 January 1979 through 8 September 1982.

4.  He was reported absent without leave (AWOL) on 10 March 1985 and was dropped from the rolls of his organization on 10 April 1985.  He was returned to military control on 23 August 1993.

5.  On 26 August 1993, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Battalion, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being AWOL from 10 March 1985 through 23 August 1993.

6.  On 26 August 1993, after consulting with counsel, he 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 court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He admitted that he was guilty of the charge against him and had no desire for further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished a UOTHC discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  He waived his rights and elected to submit a statement in his own behalf.

7.  In the applicant's statement, he requested the issuance of a general discharge.  He stated he understood the decision to go AWOL was his and he fully accepted the consequences.  At the time of his AWOL, he was in the process of a divorce and he had a severe alcohol problem.  His mental and emotional state was such that he made the wrong decision.

8.  On 4 October 1993, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UOTHC discharge and reduction to pay grade E-1.

9.  The applicant was discharged accordingly on 20 October 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He was credited with completing 6 years, 8 months, and 27 days of net active service and time lost from 10 March 1985 through 28 May 1987 and from 29 May 1985 through 23 August 1993.

10.  The applicant provided a copy of a Certificate of Health Care Provider which shows he was diagnosed with lung cancer in May 2012 and was undergoing radiation therapy.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10, a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier’s overall record.

	b.  Paragraph 3-7a, an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b, a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with being AWOL from 10 March 1985 through 23 August 1993.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He also acknowledged that he could be discharged UOTHC and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  While the Board has empathy for his medical condition, he provided insufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

4.  The applicant's desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20120020459





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ABCMR Record of Proceedings (cont)                                         AR20120020459



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