IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130006776 


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 his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states:

	a.  He entered the Army in October 1984 to serve his country.  The Marines had suffered a bombing in Beirut and he wanted to ensure the American people would be safe even if it meant putting himself in harms way.  He served honorably as an infantryman and he was promoted to the rank of a noncommissioned officer (NCO).  

	b.  While on leave in transit from Fort Benning, GA, to Korea, he was arrested by the local authorities for failure to turn in a rental car as contracted.  The rental agency reported the car stolen, local authorities arrested him, and he was incarcerated past his reporting date.  

	c.  The circumstances surrounding his discharge were not thoroughly examined.  Instead of being offered the opportunity to proceed to his next duty station, he was discharged without being provided due process.  He was informed that if he accepted an under other than honorable conditions discharge it would be automatically upgraded to a general discharge after 6 months.  He assumed this was correct until he applied for treatment at a Department of Veterans Affairs (VA) hospital.  His current discharge status does not allow him to receive VA benefits.

3.  The applicant provides a page titled Criminal Records Copy Request.

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 (RA) on 10 October 1984 and he held military occupational specialty 11B (Infantryman).  The highest rank/grade he held while serving on active duty was specialist four/E-4.  He reenlisted in the RA on 22 June 1987.  On 26 January 1988, he was assigned to the 1st Battalion, 18th Infantry Regiment, Fort Benning, GA.  

3.  Orders 188-004, dated 7 July 1989, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, assigned him to the 1st Replacement Detachment, Korea, in accordance with his port call with an availability date of 5 February 1990.

4.  He was reported as absent without leave (AWOL) for failing to report to the 1st Replacement Detachment, Korea, on his reporting date of 14 February 1990 and he was subsequently dropped from the rolls as a deserter.

5.  On 12 August 1990, he surrendered to military authorities at Fort Hood, TX, and he was subsequently assigned to the Personnel Control Facility (PCF), Fort Knox, KY.  

6.  On 22 August 1990, court-martial charges were preferred against him for one specification of being AWOL from his assigned unit from 14 February to 12 August 1990.

7.  On 22 August 1990, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

8.  In his request for discharge, he acknowledged:

	a.  He was submitting the request of his own free will and had not been subjected to any coercion, that he was guilty of being AWOL from 14 February to 12 August 1990, and that under no circumstances did he desire further rehabilitation or to perform further military service (emphasis added).  He declared his defense counsel explained to him to his complete understanding and satisfaction, all legal and social ramifications of that type of discharge and what it would mean to him in the future.

	b.  He acknowledged he understood if the request were approved he might be discharged under other than honorable conditions.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He declined to submit a statement on his own behalf.

9.  On 4 October 1990, his immediate commander recommended approval of his request with a discharge under other than honorable conditions.

10.  On 10 October 1990, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  On 5 November 1990, he was discharged accordingly.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 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 characterization of service.  He completed 5 years, 6 months, and 28 days of creditable active service with 76 days of excess leave and 180 days (or 6 months) of lost time due to being AWOL.

12.  Item 18 (Remarks) of his DD Form 214 contains the entry continuous honorable active service from 10 October 1984 to 21 June 1987.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of a serious offense 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.  As such, he voluntarily requested discharge to avoid a trial by court-martial.

2.  The evidence of record also confirms he was afforded due process and his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 6 months, the Army has never had a policy of automatically upgrading discharges and the evidence of record does not show he was ever advised that his discharge would be automatically upgraded. 


4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  Although he may have served honorably for part of his military service, this was acknowledged by the remark on his DD Form 214 that shows he had continuous honorable active service from 10 October 1984 to 21 June 1987.

6.  His record shows he was AWOL for 6 months at the time he returned to military control.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130006776



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ABCMR Record of Proceedings (cont)                                         AR20130006776



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