IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140006857 


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.

2.  The applicant states he chose to be discharged in lieu of a court-martial and he had not been in conflict with law enforcement.  In effect, he wants his discharge upgraded so he can receive medical care at a Department of Veterans Affairs' (VA) hospital.

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 Regular Army (RA) on 20 August 1980, for 3 years.  He was awarded military occupational specialty 12B (combat engineer). 

3.  He was honorably discharged on 28 March 1983 for the purpose of immediate reenlistment.  He reenlisted in the RA on 29 March 1983.  He was promoted to pay grade E-5 on 12 October 1983.  He served in Hawaii from 1 October 1984 through 4 February 1985.  

4.  On 5 February 1985, he was reported absent without leave (AWOL) and on 7 March 1985, he was dropped from the rolls of his organization.  On 16 April 1985, he surrendered to military authorities and was returned to military control.

5.  On 17 April 1985, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Bragg, NC.  The applicant was charged with one specification of being AWOL from 5 February to 16 April 1985.  On the same day court-martial charges were preferred against the applicant.

6.  On 17 April 1985, 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 Certificate 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.  

7.  On 24 April 1985, the applicant's company commander recommended approval of the applicant's discharge with a UOTHC.  The commander stated that the applicant was interviewed on 17 April 1985 and stated he desired elimination from the service under the provisions of chapter 10.  The applicant also acknowledged that his AWOL of approximately 70 days was due to financial problems and he could not meet basic financial obligations in Hawaii due to the high cost of living and those problems only made his marital problems worse.  Unable to cope with the situation, he went AWOL.

8.  On the same day, the applicant's battalion commander recommended approval of the applicant's discharge with a UOTHC.  

9.  On 9 May 1985, 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 22 May 1985.  He was credited with completing 4 years, 6 months, and 22 days of net active service and 71 days of time lost.  His service was characterized as UOTHC.

11.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
   
   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was 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 a UOTHC Discharge Certificate.  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, there is no basis for granting him the requested relief.

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)                                         AR20140006857





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ABCMR Record of Proceedings (cont)                                         AR20140006857



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