IN THE CASE OF:	   

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008066 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was railroaded out of the Army and coerced into signing a chapter “11” discharge and now years later he has been diagnosed with Embryonal Rhabdomyosarcoma, a deadly cancer, with no known cure.  His doctors are convinced that he contracted the disease while in service.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his Surgical Pathology Final Report.

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.  His records show he enlisted in the Regular Army on 17 June 1998.  During his period of service he held military occupational specialty 77F (Petroleum Supply Specialist) and he was assigned to Company B, 84th Engineer Combat Battalion (Heavy), Schofield Barracks, Hawaii.

3.  On 12 June 2001, court-martial charges were preferred against him for failing to go at the time prescribed to his appointed place of duty, disrespecting a superior commissioned officer, and the wrongful use of marijuana.

4.  On 13 June 2001, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

5.  On 29 June 2001, the separation authority approved his request for discharge in lieu of trial by court-martial with an under other than honorable characterization of service.

6.  On 6 July 2001, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 2 years, 11 months, and 19 days of creditable active service.

7.  On 15 July 2009, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly and equitably discharged.

8.  The applicant provides a five-page Surgical Pathology Final Report dated 
11 February 2014 which shows a biopsy of his left soft palate found residual embryonal rhabdomyosarcoma, botryoid type.

9.  Army Regulation 635-200 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.  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.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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 evidence of record shows he was charged with the commission of offenses 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  Further, there is no evidence and the applicant has failed to provide any evidence to show he was forced to sign his request for discharge.  His record shows that he acknowledged guilt to the charges against him; therefore, he is not entitled to an honorable or a general discharge. 

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Lacking evidence to the contrary, his request for an upgrade of his discharge should be denied.

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)                                         AR20140008066





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ABCMR Record of Proceedings (cont)                                         AR20140008066



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