IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140006919 


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 so that he may be eligible for Department of Veterans Affairs (VA) benefits.

2.  The applicant states:

   a.  His mother had a stroke and went into a coma while he was at home on leave.  He had orders to Germany and he contacted the Army several times to inform them of his situation; however, he received no response from the Army to allow him to remain on leave due to the hardship.  His family was devastated by his mother's illness and he ended up staying 2 months beyond the scheduled ending date of his leave.  

   b.  He contacted the Army and he was told to go to Fort Knox, KY where he signed papers for an under other than honorable conditions discharge.  He was young and unable to handle the situation very well.  He regrets what happened and he seeks an upgrade of his discharge.  At the time of his discharge, he was told he would be eligible for VA benefits and he was never told he could not receive benefits.  If he had been told he would not receive any benefits, he would not have gotten out.  He took pride in serving his country and is proud to have served.




3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Ohio Department of Health Certificate of Death
* Two letters of support

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 was born on 11 July 1959.  He enlisted in the Regular Army on 27 February 1979, completed training, and he was awarded military occupational specialty 76D (Materiel Supply Specialist).

3.  On 21 May 1981, court-martial charges were preferred against the applicant for one specification of absenting himself from his organization (the 21st Adjutant General Replacement Detachment), from 25 October 1980 to 18 May 1981.
 
4.  On 22 May 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

5.  In his request for discharge, he acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He acknowledged he understood if his discharge request were approved, he may be deprived of many or all Army benefits.  He acknowledged he may 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.  The applicant provided a statement claiming:

   a.  He was 21 years old and he had a high school education.  He joined the Army because he was unemployed.  He wanted out of the service because he was enroute to Germany and his mother had a brain hemorrhage and needed major surgery.  

   b.  The Red Cross informed him he might be eligible for reassignment or deferment from overseas duty.  He submitted the paperwork to Fort Benjamin Harrision, IN; however, he never heard anything back from them.  

   c.  He called them and he was told to report to Germany.  He felt he needed to be with his mother for her operation because there was a great chance she might not survive.  At the time of his statement, his mother remained in a coma.

6.  On 17 June 1981, his immediate and intermediate commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

7.  On 22 June 1981, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. 
On 24 July 1981, he was discharged accordingly.

8.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 1 year, 10 months, and 5 days of creditable active service and he had lost time from 25 October 1980 to 17 May 1981.

9.  The applicant provides a copy of his mother’s Certificate of Death which shows her date of death as 20 September 1981.

10.  The applicant provides two letters of reference which attest to his positive character and post-service conduct.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 states 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 under other than honorable conditions discharge should be upgraded so that he may be eligible for VA benefits was carefully considered and determined to lack merit.

2.  The applicant's record shows 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.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was absent from his organization from 25 October 1980 to 17 May 1981.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.

5.  While the events surrounding his mother's illness was tragic, it does not excuse his actions to remain absent without leave for over 6 months.  Records show the applicant was over 21 years of age at the time of his offense.  There is no evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  

6.  Notwithstanding the statements provided by the applicant and his post-service conduct, the ABCMR does not grant requests for discharge upgrades solely for the purpose of making former service member's eligible for veterans' benefits.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140006919



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ABCMR Record of Proceedings (cont)                                         AR20140006919



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