IN THE CASE OF:	  

		BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004759 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states he needs his discharge upgraded so he can receive medical treatment at the Department of Veterans Affairs (VA) for his back injury.  In effect, during his period of service he was stressed out, he drank too much, and was he not in his right state of mind.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2.  The applicant enlisted in the Indiana Army National Guard (INARNG) on 13 December 1980.  He entered active duty training (ADT) on 12 February 1981.  He completed training and was awarded military occupational specialty 11B (infantryman).  He was honorably released from ADT on 7 May 1981.

3.  He was promoted to pay grade E-6 on 15 April 1996.

4.  He was ordered to AD for mobilization and entered AD on 27 February 2003.  

5.  He was reported absent without leave (AWOL) on 6 April 2003 and dropped from the rolls of his organization on 7 May 2003.  On 17 March 2004, he was apprehended by civil authorities and returned to military control.

6.  On 25 March 2004, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 6 April 2003 through 17 March 2004.  On the same day court-martial charges were preferred against the applicant.

7.  On 25 March 2004, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL.  He requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged UOTHC and furnished a UOTHC discharge and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

8.  On 26 March 2004, the Commander, U.S. Army Personnel Control Facility recommended approval of the applicant's discharge.  He stated that there did not appear to be any reasonable ground to believe that the applicant is, or was at the time of his misconduct, mentally defective, deranged, or abnormal.  

9.  On 29 March 2004, the separation authority approved the applicant’s request and directed the issuance of a UOTHC discharge and reduction to pay  grade 
E-1.

10.  He was discharged accordingly on 7 April 2004.  He was credited with completing 1 month and 25 days of net active service and time lost from 6 April 2003 to 16 March 2004.  His service was characterized as UOTHC.

11.  On 14 November 2008, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  The regulations states in:

   a.  Chapter 10 - a Soldier who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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.  Army policy states that although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

   b.  Paragraph 3-7a - an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge is a separation from the Army under honorable condition.  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 was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation       635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an UOTHC discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.
4.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits from the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for VA benefits.

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)                                         AR20140004759





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ABCMR Record of Proceedings (cont)                                         AR20140004759



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