BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140005719 


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 a discharge upgrade.

2.  The applicant states, in effect, he served 9 years and was a model Soldier until his former wife abandoned him.  He left his unit because he was under extreme emotional distress and was attempting to locate his wife and infant child.  He voluntarily surrendered to military authorities.  He has not been in trouble since his discharge.  He now wishes to improve the quality of his life and obtain benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides a 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 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.  After prior service in the Illinois Army National Guard, the applicant enlisted in the Regular Army on 27 January 1987 with the military occupational specialty of 11B (Infantryman).  The highest grade/rank he attained while on active duty was sergeant/E-5.

3.  Item 21 (Time Lost (Sec. 972, Title 10, USC)) of his DA Form 2-1 (Personnel Qualification Record) shows the applicant was absent without leave (AWOL) during the period 19 November 1995 to 22 July 1996.

4.  On 23 July 1996, court-martial charges were preferred against him for being AWOL during the period 19 November 1995 to 22 July 1996.

5.  On 23 July 1996, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that by requesting discharge 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.

7.  The applicant provided a self-authored statement, dated 23 July 1996, essentially stating he:

* wished to receive a general discharge
* was on his third enlistment
* had executed his most recent reenlistment so he could return to his last unit in Germany and be with his fiancé; but despite his efforts, he was not able to secure a reassignment
* felt depressed and started seeing a psychiatrist
* was attending college at the time and was told he would have to go to the field shortly before exams
* missed his children and decided to go see them
* remained near his children, found a job, and returned to military control after being laid off

8.  On 12 September 1996, the separation authority approved his request for discharge in lieu of court-martial and directed the issuance of a discharge under other than honorable conditions.
9.  On 17 December 1996, he was discharged accordingly.  His DD Form        214 shows he completed 9 years, 2 months, and 15 days of active military service during the period under review, of which 254 days was lost time due to being AWOL.  

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

	b.  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 be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record reflects a total of 254 days of time lost.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting either an honorable or a general discharge.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for housing or other VA benefits should be addressed to the VA.


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)                                         AR20140005719





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005719



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1