IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130013554 


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 to an honorable discharge.

2.  The applicant states that he was discharged for a minor offense that was not willful and persistent.  He contends his service was otherwise honest, faithful, and meritorious.  He desires a discharge upgrade so he will be eligible to receive benefits.

3.  The applicant provides the first page of a letter that he received from the Department of Veterans Affairs (VA), Atlanta Regional Office, Decatur, GA.

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 enlisted in the Regular Army on 19 September 1985.  He completed initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5. 

3.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was charged with lost time for the following periods for the reasons shown:

* from 2 to 8 March 1989 for being absent without leave (AWOL)
* from 3 April to 21 June 1989 for being AWOL
* from 21 to 25 June 1989 while confined by civil authorities
* from 7 to 10 July 1989 for being AWOL
* from 11 July to 25 October 1989 for being AWOL

4.  A DD Form 458 (Charge Sheet) charge, dated 3 November 1989, shows court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by departing his unit in an AWOL status on or about 11 July 1989 and remaining so absent until on or about 26 October 1989.

5.  The applicant rendered a memorandum wherein he declared that he had been advised by his defense counsel that at the present time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial or for him to be completely advised by his military defense counsel.  Knowing this to be true, he waived all defenses that may have become known had his defense counsel been able to review his records.  Knowing this to be true, the applicant knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from 11 July to 26 October 1989.  He made this admission for administrative purposes only so he may process out of the Army and realized in doing so that he may be given an under other than honorable conditions discharge.  He further declared that his military defense counsel had explained to him to his complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it would mean to him in the future.

6.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights available to him.


7.  On 3 November 1989, following counseling, the applicant submitted a voluntary written 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.  He indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant declined to submit a statement in his own behalf.

8.  His chain of command recommended approval of his request for discharge for the good of the service under other than honorable conditions.

9.  On 19 November 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of discharge under other than honorable conditions.  He also directed that the applicant be reduced to the rank/grade of PV1/E-1 prior to execution of the discharge.

10.  On 19 January 1990, the applicant was discharged accordingly.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant provides the first page of a letter that he received from the VA, Atlanta Regional Office, Decatur, GA, dated 13 March 2012.  This letter informed the applicant that the VA had made a decision regarding his discharge from military service and determined that his service for the period of 19 September 1985 through 19 January 1990 is honorable for VA purposes in accordance with the provisions of 38 Code of Federal Regulations, part 3.12(d).  As a result of this VA determination, he and his dependents were eligible for any VA benefits for this period of military service. VA explained that they considered his AWOL to have been a minor offense and that a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

13.  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 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.

14.  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.

15.  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 was carefully considered.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

4.  The fact that the VA determined that the applicant's service is considered honorable for the sake of receiving benefits from their agency is not disputed.  However, the Army operates under a different set of laws and regulations and is not bound by VA determinations.
5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130013554





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ABCMR Record of Proceedings (cont)                                         AR20130013554



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