IN THE CASE OF:	  

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140006861 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he would like his discharge upgraded because he thinks he got a bad deal out of the situation and he would like to get his life on track.  He further states that he would like to receive the benefits associated with an honorable discharge because since his discharge, he has been in an ongoing battle with a drug and alcohol addiction.  He would like to have an opportunity to use the programs offered by the Department of Veterans Affairs (VA).

3.  The applicant did not provide 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 20 November 1984.

3.  His records show he departed absent without leave (AWOL) on 20 March 1985 and that he returned to military control on 8 August 1985 after his apprehension by civilian authorities.

4.  On 14 August 1985, court-martial charges were preferred against him for the AWOL offense.

5.  On 14 August 1985, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

6.  He acknowledged in his request for discharge that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge(s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood that he could be issued a UOTHC discharge and that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a UOTHC discharge.

7.  On 18 September 1985, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 29 October 1985, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 months and 22 days of creditable active duty service and that he accrued 141 days of time lost.

8.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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 UOTHC 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 request for an upgrade of his UOTHC discharge so that he may utilize VA benefits and programs has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain VA benefits.  Each case is decided on its own merits.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes court-martial charges and 141 days of time lost due to being AWOL.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  There is no evidence of error or injustice in the applicant's separation processing or the character of service he received.  As a result, there is no basis to grant the requested relief.  

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)                                         AR20140006861



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ABCMR Record of Proceedings (cont)                                         AR20140006861



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