IN THE CASE OF:  	  

		BOARD DATE:  21 April 2015  	  

		DOCKET NUMBER:  AR20140014922 


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, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, his discharge was improper since he was not notified of his alternatives.  He states he has been serving our veterans faithfully at a Department of Veterans Affairs hospital since January 1992.

3.  The applicant does not provide any supporting documentation.   

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.  On 3 February 1983, the applicant enlisted in the Regular Army.  He successfully completed advanced individual training and was awarded the military occupational specialty 91A (Medical Specialist).

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualifications Record) shows he was absent without leave (AWOL) from 19 June 1985 to 10 July 1985 and from 20 July 1985 to 4 January 1986.  

4.  On 9 January 1986, the applicant was pending court-martial charges for being AWOL for over 5 months and 15 days from 20 July 1985 to 5 January 1986. 

5.  On 10 January 1986, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he has charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an UOTHC Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

6.  On 23 January 1986, the appropriate authority approved the applicant's request for discharge for the good of the service.  The appropriate authority directed that the applicant be reduced to private/pay grade E-1 and that he be furnished a discharge UOTHC.

7.  On 20 February 1986, the applicant was discharged with a UOTHC discharge.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 17 July 1998, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that his service was properly characterized as UOTHC.

9.  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 provides that a general discharge (GD) 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.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an UOTHC discharge.  

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  Based on the applicant's serious misconduct and pending court-martial, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.

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)                                         AR20140001770



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ABCMR Record of Proceedings (cont)                                         AR20140014922



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