IN THE CASE OF:  

		BOARD DATE:  2 December 2014	  

		DOCKET NUMBER:  AR20140006855 


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 discharge. 

2.  The applicant states:

   a.  He had good conduct and commendations until he was denied leave and subsequently went absent without leave (AWOL) to file for a divorce.  He was under extreme duress due to financial threats made by his wife and he was too young and immature to fully realize any other options.  He returned to Fort Knox, KY prior to 30 days and he wanted to rejoin his unit, but he was not allowed to.

   b.  He is in extremely poor health and desperately needs to access health care benefits from the Department of Veterans Affairs (VA).  He further states he would like to be buried at the Kentucky Veterans Cemetery where both of his parents reside.

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 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 22 November 1983, at age 21.  He completed training and he was awarded military occupational specialty 52D (Power Generator Equipment Repairer).  Upon completion of his training he was assigned to Headquarters and Headquarters Company, 3rd Battalion, 32nd Armor Regiment, in the Federal Republic of Germany.

3.  On 29 August 1985, court-martial charges were preferred against him for violating two specifications of Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, for being AWOL from his unit from 1 April to 2 May 1985 and from 12 May to 23 August 1985.

4.  On 3 September 1985, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ, the possible effects of discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial was approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

5.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood if his discharge request was approved, 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.  He also stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.  He chose not to submit a statement on his behalf.

6.  His immediate and intermediate commanders recommended approval of his discharge action with the issuance of an under other than honorable conditions discharge.

7.  On 26 September 1985, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

8.  He was discharged on 15 October 1985.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  His DD Form 214 further shows he completed 1 year, 6 months, and 12 days of creditable active service with time lost for the periods 1 April to 1 May 1985 and 12 May to 22 August 1985.

9.  On 30 April 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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's contention that his undesirable discharge should be upgraded was carefully considered; however, it was determined to lack merit.  He voluntarily chose to commit the offenses which ultimately led him to face court-martial charges that could have resulted in a dishonorable or bad conduct discharge.  Instead, he chose to request a voluntary discharge.

2.  His records show he was charged with the commission of an offense punishable under the 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.  He 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.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his age and maturity there is insufficient evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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 health care and other benefits should be addressed to the VA.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory; therefore, he is not entitled to either 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)                                         AR20140006855



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ABCMR Record of Proceedings (cont)                                         AR20140006855



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