IN THE CASE OF:	  

		BOARD DATE:	    26 September 2013

		DOCKET NUMBER:  AR20130002738 


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 served his initial 3 years of service without any problems or disciplinary actions.  At the time of his discharge he was told if he did not accept a discharge under other than honorable conditions, he would be court-martialed and thrown out of the Army with a dishonorable discharge.

3.  The applicant provides a self-authored letter, dated 30 January 2013, and 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.  On 19 July 1983, the applicant enlisted in the Regular Army for 3 years.  He completed training as a medical specialist.  On 26 October 1985, he extended his enlistment for 2 years and 3 months.

3.  On 13 May 1987, the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 2 September 1986 until he was apprehended by military authorities on 29 April 1987 and returned to military control.  He acknowledged receipt of the notification.  After consulting with counsel, he 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.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

4.  On 21 August 1987, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

5.  On 30 September 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 3 years, 6 months, and 15 days of creditable active service.

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

7.  The applicant provides a self-authored statement wherein he contends:

* He extended his initial enlistment to go to the "91C" course at Fort Sam Houston, TX
* He was unable to complete the course due to marital and financial issues
* He was sent Fort Lewis, WA, to prepare for an assignment to Germany
* He went to the chaplain and requested to stay at Fort Lewis so he could complete his divorce and plan for the care of an unborn child while he was in Germany
* He would be more than happy to repay his time lost
* When the military police sent him to Fort Ord, CA, he was in-processed and sent to a military lawyer
* He was told he would be discharged and his choices were chapter 10 with an under other than honorable conditions discharge or a court-martial with a dishonorable discharge and maybe even prison time
* He was under the impression that he would still qualify for VA medical benefits and keep his veteran status since he completed his initial 3 years of service
* Now that he has applied for VA medical benefits he discovered that none of the benefits are available to him unless his character of service is changed

8.  Army Regulation 635-200 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 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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to 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 have been noted and his supporting evidence has been considered.

2.  The applicant's record shows he had not completed his first full term of service because he extended his period of enlistment from 3 years to 5 years and 3 months.

3.  He was AWOL from 2 September 1986 to 29 April 1987 and charges were pending against him for this AWOL offense.  He submitted a 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.  In his request he acknowledged he understood the effects of an under other than honorable conditions discharge.

4.  There is no evidence of record and he did not submit any evidence showing he was suffering from marital and financial problems while he was in the Army.  Even if so, he had other avenues though which he could have pursued assistance in lieu of going AWOL.

5.  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

___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)                                         AR20130002738



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ABCMR Record of Proceedings (cont)                                         AR20130002738



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