IN THE CASE OF:	  

		BOARD DATE:	 1 May 2014 

		DOCKET NUMBER:  AR20130016123 


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 unable to return home from Germany before his father died and he went to the chaplain and others for help. He needs an upgrade for job applications and medical insurance benefits.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), two character reference letters, and a self-authored statement. 

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 23 March 1982.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).

3.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 20 September 1985 for being absent without leave (AWOL) during the period 9 July 1985 through 24 July 1985.
 
4.  The applicant’s separation processing packet is not available for review with this case.  However, Army Discharge Review Board (ADRB) proceedings show that on 27 January 1987 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.  He admitted to being AWOL from 9 October 1985 to 
16 January 1986.  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 Veterans Administration, 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’s DD Form 214 shows his separation authority as Army Regulation 635-200, chapter 10, for the good of the service–in lieu of court-martial with a discharge date of 25 February 1986.  He had completed a total of  3 years, 7 months, and 11 days of active service with the following dates of lost time:

* 9 July 1985 through 23 July 1985
* 9 October 1985 through 15 January 1986

6.  On 2 October 1998, the ADRB denied his request for an upgrade of his discharge.

7.  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.

8.  Army Regulation 635-200, paragraph 3-7a, states 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.

9.  Army Regulation 635-200, paragraph 3-7b, states 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 and it was determined there was insufficient evidence to support his request.

2.  The applicant was discharged 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.  Therefore it is presumed that 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 112 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.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or medical benefits.

5.  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)                                         AR20130016123



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ABCMR Record of Proceedings (cont)                                         AR20130016123



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