IN THE CASE OF:	   

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140013007 


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.

2.  The applicant states he is requesting an upgrade of his discharge so he may seek medical treatment for illnesses that were a direct result of his service in support of Operations Desert Shield/Desert Storm.

3.  The applicant provides no 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 23 January 1990 and he held military occupational specialty 19K (M1 Abrams Armor Crewmember).  In 1991, he was assigned to Troop D, 1st Squadron, 12th Cavalry Regiment, Fort Knox, KY.

3.  On 27 December 1991, he was reported as absent without leave (AWOL) from his assigned unit.  On 26 January 1992, he was dropped from the rolls (DFR) as a deserter.

4.  On 18 February 1992, he returned to military control at Fort Dix, NJ, and was assigned to the Personnel Control Facility, Fort Dix.

5.  On 25 February 1992, court-martial charges were preferred against him for being AWOL from 27 December 1991 to 18 February 1992.

6.  On 3 March 1992, the applicant consulted with legal counsel who advised him 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.

7.  In his request for discharge, he acknowledged he was submitting the request of his own free will and had not been subjected to any coercion, that he was guilty of the charges against him, and that under no circumstances did he desire further rehabilitation or to perform further military service.  He further acknowledged he understood that if the request were approved he might be discharged under other than honorable conditions.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  He declined to submit a statement on his own behalf.

8.  On 4 March 1992, he was placed on excess leave pending the results of his request for a chapter 10 discharge.

9.  On 7 April 1992, his immediate commander recommended approval of his request with a discharge under other than honorable conditions.

10.  On 6 May 1992, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  On 4 June 1992, he was discharged accordingly.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 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, with his service characterized as under other than honorable conditions.  He completed 2 years, 2 months, and 21 days of net active service of which 93 days were excess leave and he had 53 days of lost time due to being AWOL.  His DD 
Form 214 shows he served in Southwest Asia from 31 December 1990 to 2 May 1991.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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 included 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.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 confirms the applicant 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.

2.  As such, he voluntarily requested discharge to avoid a trial by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for medical or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140013007



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ABCMR Record of Proceedings (cont)                                         AR20140013007



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