IN THE CASE OF:  	  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140008887 


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 upgrade of his discharge to general under honorable conditions.

2.  The applicant states he never looked at his DD Form 214 (Certificate of Release or Discharge from Active Duty) before he went to the Department of Veterans Affairs (VA) for health care.  No one can do anything until it is changed.

3.  The applicant provides a copy of his DD Form 214.

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 1 May 1986, completed training as a medical specialist, and progressed normally to pay grade E-4.  He was awarded an Army Achievement Medal in May 1987 and the Army Good Conduct Medal in April 1989.

3.  He was arrested by civil authorities on 20 September 1989 and held indefinitely because he could not make the $50,000 bail.  When the contents of his on-base quarters were inventoried because the date of his return to duty was unknown he was found to be in possession of two handguns and ammunition for them.  These weapons were not properly registered with either the base or state authorities although both were required. 

4.  On 12 March 1990, charges were preferred against the applicant for violation of a lawful general regulation for wrongful possession of the two handguns, and one specification for each of the two handguns for conduct prejudicial to good order and discipline by not complying with state/federal law by failing to have a firearms identification card.

5.  The applicant consulted with counsel on 27 March 1990 and voluntarily 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.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and be issued a discharge under other than honorable conditions (UOTHC).  He indicated he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the VA.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life.

6.  The chain of command recommended approval of his request and the issuance of a discharge UOTHC.  The separation authority approved the request and directed his discharge UOTHC.   

7.  On 5 April 1990, the applicant was so discharged.  He had served 3 years, 11 months, and 6 days of creditable service.




8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

	b.  Paragraph 3-7b states 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.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's desire to obtain VA medical benefits is not justification to upgrade his 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)                                         AR20140008887





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ABCMR Record of Proceedings (cont)                                         AR20140008887



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