IN THE CASE OF:  	  

		BOARD DATE:  3 March 2015	  

		DOCKET NUMBER:  AR20140011608 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states:

* he was not fairly given an opportunity to explain his divorce situation
* he was misled by the recruiter that he should not apply for Officer Candidate School
* he was lied to, misled, and given false information to persuade him to enter the Army
* he has been denied educational benefits and other Department of Veterans Affairs (VA) benefits due to his discharge
* he was not fully informed of the long-term effects of his discharge

3.  The applicant provides character reference letters.

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 May 1994 for 6 years.  He completed basic training.

3.  While in advanced individual training, he was absent without leave (AWOL) on 10 January 1995 and returned to military control on 22 February 1995.  On 24 February 1995, charges were preferred against him for the AWOL period.

4.  On 24 February 1995, he consulted with counsel and 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 acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge under other than honorable conditions, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

5.  On 23 March 1995, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

6.  On 11 May 1995, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 10 months and 10 days of creditable active service with 43 days of lost time.  His service was characterized as under other than honorable conditions.

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

8.  He provided seven character reference letters from his pastor, friends, employer, and nephew who attest the applicant:

* is dedicated and honest
* is hard working and a good man
* has an exceptional educational background
* had marital problems while he was in the Army
* has grown mentally and spiritually
* is educated, kind, and helpful
* played a very important role and part of his nephew's life 

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

	a.  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.

	b.  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 wants his discharge upgraded so he can receive VA benefits.  However, a discharge is not changed for the purpose of making an applicant eligible for VA benefits.  Each request is individually considered based on the evidence presented.

2.  Although he claims he was not fully informed of the long-term effects of his discharge, the evidence shows he consulted with counsel on 24 February 1995 prior to voluntarily requesting discharge in lieu of trial by court-martial.

3.  The character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His voluntary 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, was administratively correct and in conformance with applicable regulations.

5.  He contends he was not fairly given an opportunity to explain his divorce situation.  However, he had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

6.  The type of discharge directed and the reason for his discharge were appropriate considering all the facts of the case.

7.  His brief record of service included 43 days of lost time.  As a result, his record of service was not satisfactory.

8.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20140011608



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ABCMR Record of Proceedings (cont)                                         AR20140011608



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