BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20130000783 


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:

* during the time of his discharge his father had health problems
* currently his health is failing

3.  The applicant does not provide any additional documents.


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’s records show he enlisted in the Regular Army on 5 November 1985.  He was awarded military occupational specialty 19E (M48-M60 Armor Crewman). The highest rank he attained while serving on active duty was private/E-2. 

3.  His record shows he accepted nonjudicial punishment for being absent without leave (AWOL) during the period 28 October through 26 November 1986.

4.  On 17 October 1990, he was charged with being AWOL during the period
12 May 1987 through 12 October 1990.

5.  On 18 October 1990, the applicant was advised by legal counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Having been so advised, he voluntarily submitted a request for discharge 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.

6.  The applicant acknowledged:

	a.  he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  he did not desire further rehabilitation nor did he desire to continue in the military; 
	
   d.  he understood if his request was accepted he could be issued an under other than honorable conditions discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge;

	f.  he understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  he did not submit a statement on his own behalf. 

7.  On 26 December 1990, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed the applicant be furnished an Under Other than Honorable Conditions Discharge Certificate.

8.  On 7 January 1991, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 8 months, and 4 days of total active service with 1,279 days of time lost due to being AWOL.

9.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  There is no evidence in the applicant’s record that shows he sought assistance through his chain of command regarding family medical issues.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the 
good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

	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 contentions that his discharge should be upgraded to general because his father was sick was carefully considered and found to be without merit.

2.  The evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

3.  There is no evidence of record, nor did he submit any evidence, that shows he sought help from his chain of command or other channels.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20130000783



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ABCMR Record of Proceedings (cont)                                         AR20130000783



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