BOARD DATE:	   26 August 2014

		DOCKET NUMBER:  AR20140000630 


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 he believes he has had enough time dealing with his alcohol problem but the Department of Veterans Affairs (VA) is unwilling to assist him with care or treatment for any of his service-connected conditions unless his discharge is upgraded.  He made a mistake and paid dearly for it.

3.  The applicant provides no additional 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 12 March 1985 and he held military occupational specialty 13B (Cannon Crewmember).  He was promoted to the rank/grade of sergeant/E-5 on 22 March 1987.  On 11 January 1991, he was assigned to the 5th Battalion, 18th Field Artillery, Fort Sill, OK.

3.  On 17 September 1993, he was reported as absent without leave (AWOL) from his assigned unit and on 18 October 1993, he was dropped from the rolls as a deserter.

4.  On 4 May 1994, he was apprehended by civilian authorities and returned to military control at Fort Dix, NJ, and he was assigned to the Personnel Control Facility at Fort Dix, NJ.

5.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged on 14 September 1994, in the rank of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions character of service.

6.  He completed 8 years, 10 months, and 16 days of net active service and he had 220 days (or 7 months and 17 days) of lost time due to being AWOL.

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was 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 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.

2.  The ABCMR does not grant requests for the 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 correction to his military records.

3.  The available records show he had almost 8 months of time lost due to being AWOL at the time of his discharge.  This misconduct rendered his service unsatisfactory.

4.  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)                                         AR20140000630





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ABCMR Record of Proceedings (cont)                                         AR20140000630



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