IN THE CASE OF:	  

		BOARD DATE:  31 October 2013

		DOCKET NUMBER:  AR20130001468 


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 discharge.

2.  The applicant states, in effect, that he was undergoing treatment for his right hip disability/problem.  He apologizes for "being so absent-minded" and not having a better sense of responsibility and self-less service.  He was a foolish 23 year old young man.

3.  The applicant provides numerous pages from his Department of Veterans Affairs (VA) records which include medical records and his separation packet. 

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 was born on 16 May 1974.  He enlisted in the Regular Army on 1 September 1993.  He completed training and was awarded military occupational specialty 91B (Medical Specialist).

3.  Charges were preferred against the applicant on the following occasions:

	a.  On 5 February 1997, for being absent from his unit on 6 January 1997; and

	b.  On 13 March 1997, for being absent without leave (AWOL) for the period 22 January through 8 March 1997.

4.  On 20 March 1997, after consulting with counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if such a discharge was issued to him.  

5.  The applicant indicated during his discharge processing that he did not desire a separation medical physical. 

6.  An undated document in the applicant's official military record shows the separation authority approved the applicant’s request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time indicates he was discharged on 30 May 1997 with service characterized as under other than honorable conditions.  He had completed a total of 3 years, 7 months, and 15 days of active service with 45 days of lost time due to being AWOL.

7.  There is no evidence in the available records which indicate the applicant's acts of indiscipline were a direct result of an injury sustained during his military service.

8.  The applicant provided numerous documents which indicate that service connected disability for his right hip was denied by the VA.

9.  On 7 July 1998, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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 contention that his discharge should be upgraded because he was young and had a hip problem/disability was carefully considered and it was determined there was insufficient evidence to support his request.

2.  The applicant was discharged, at age 23, for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 
635-200.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on the applicant’s record of indiscipline which includes 45 days lost time due to being AWOL his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory. 
4.  There is no evidence in the available records and the applicant did not provide any evidence which shows that his acts of indiscipline were a direct result of injuries sustained during military service.

5.  Records show the applicant was 23 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Therefore, based on the foregoing, the applicant is not entitled to an upgrade to his discharge.

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)                                         AR20130001468



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ABCMR Record of Proceedings (cont)                                         AR20130001468



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