IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120021930 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he would like his discharge upgraded because he cannot receive services from the Department of Veterans Affairs (VA) hospital due to his under other than honorable conditions discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 2 July 1982.  The highest rank/grade he attained during his service was sergeant (SGT)/E-5 on
9 November 1985.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 13 November 1986 for failing to go at the time prescribed to his appointed place of duty on 21 October 1986, and for being absent without leave (AWOL) until 25 October 1986.

4.  His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 27 January 1987, that shows a local bar to reenlistment was imposed against the applicant.  The reasons given for the local bar to reenlistment were NJP under the UCMJ, Article 15, and a record of non-payment of just debts.  On 1 February 1987, the local bar to reenlistment was approved by the appropriate authority.

5.  The applicant again accepted NJP under the provisions of Article 15, UCMJ, on 11 May 1987 for failing to go at the time prescribed to his appointed place of duty on 20, 21, and 22 April 1987.

6.  His record contains three DA Forms 4187 (Personnel Action) that show on:

* 29 May 1987 he was reported AWOL
* 28 June 1987 he was dropped from the rolls (DFR) of his unit
* 15 February 1988 he surrendered to military authorities at Fort Dix, NJ

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, the applicant provides and his record contains a DD Form 214 that shows he was discharged on 11 April 1988 under the provisions of Army Regulation 635-200 (Personnel 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.  His DD Form 214 shows he was discharged in the rank/grade of private (PV1)/E-1.

8.  On 6 December 1993, after careful consideration of his case, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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 


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.

	b.  Paragraph 3-7a provides that 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 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's request to upgrade his under other than honorable conditions discharge to a general discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  The applicant's record includes evidence that shows he received NJP on two occasions and was AWOL/DFR during the period 29 May 1987 through
14 February 1988.  Based on this record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to either an honorable or 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 or medical 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 veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to 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)                                         AR20120021930



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ABCMR Record of Proceedings (cont)                                         AR20120021930



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