IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130004003 


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 under other than honorable conditions.

2.  The applicant states:

* his discharge should be upgraded so he may receive disability benefits
* he was deployed to the Persian Gulf while he was actively addicted
* he received no treatment 
* upon his return, he had mental and emotional issues that led him to go absent without leave (AWOL)
* he was not of sound mind and he believes the United States Army is liable for the incurrence/aggravation of his illnesses

3.  The applicant provides DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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.  With prior enlisted service in the U.S. Navy Reserve, the applicant enlisted in the Regular Army on 25 April 1990.  He completed training as an engineer tracked vehicle crewman.

3.  On 20 July 1992, the applicant was notified that charges were pending against him for being AWOL from 27 April until 16 July 1992.

4.  He acknowledged receipt of the notification for discharge.  On 20 July 1992, after consulting with counsel, 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 for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions
* 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 Department of Veterans Affairs (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

5.  On 27 August 1992, the appropriate authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge.

6.  On 15 September 1992, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years, 2 month, and 1 day of net active service this period.

7.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.


8.  Army Regulation 635-200 (Personnel Separations) 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 contentions have been noted.  His supporting evidence has been considered.

2.  There is no evidence in the available records showing he was "addicted" and was not of sound mind when he was in the Army.

3.  The available evidence shows he was AWOL for almost 3 months.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He could have elected to stand trial by court-martial; however, if convicted, he could have been issued a punitive discharge.  The applicant's desire to receive disability benefits is not sufficiently mitigating to warrant the requested relief.

4.  The applicant's period of AWOL rendered his service unsatisfactory.  He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service. Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20130004003





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ABCMR Record of Proceedings (cont)                                         AR20130004003



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