BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130018432 


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 “dishonorable” discharge. 

2.  The applicant states:

* the dishonorable discharge shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is preventing him from receiving proper health benefits
* he cannot recall signing any paperwork stating such a claim or discharge

3.  The applicant provides no additional documentary evidence.

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 9 October 1973 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11C (indirect fire infantryman).  On 25 July 1976, he was honorably discharged for immediate reenlistment.  He reenlisted on 26 July 1976 for a period of 5 years.  He attained the rank/grade of sergeant (SGT)/E-5 on 
12 January 1979.  On 26 April 1981, he was honorably discharged for immediate reenlistment.  He reenlisted on 27 April 1981 for a period of 4 years.

3.  He went absent without leave (AWOL) on 8 October 1982.  He was apprehended by civilian authorities on 21 August 1983 for driving under the influence and driving with a revoked license.  He was returned to military control on 22 August 1983.

4.  His discharge proceedings are not available for review.  However, his Army Discharge Review Board (ADRB) proceedings state:

	a.  on 23 August 1983, charges were preferred against him for the AWOL period.

	b.  on 26 August 1983, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service-in lieu of trial by court-martial.  It is unknown if he elected to make a statement in his own behalf.

	c.  on 31 October 1983, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions.

5.  On 10 November 1983, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 9 years, 2 months, and 18 days of total creditable active service with 318 days of time lost.  His service was characterized as under other than honorable conditions.

6.  In May 1990, the ADRB denied his request for a general discharge.

7.  Army Regulation 635-200 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 contends his DD Form 214 shows a dishonorable discharge.  However, his service was characterized as under other than honorable conditions on his DD Form 214.

2.  He contends his discharge is preventing him from receiving proper health benefits.  However, a discharge is not changed for the purpose of obtaining Department of Veterans Affairs benefits.

3.  He contends he doesn't recall signing any paperwork.  However, the available evidence indicates he consulted with counsel on 26 August 1983 before voluntarily requesting discharge for the good of the service.

4.  His record of service during his last enlistment included a lengthy AWOL period.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service [during his final enlistment].

6.  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)                                         AR20130018432





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ABCMR Record of Proceedings (cont)                                         AR20130018432



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