BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140019354 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that at the time of his separation processing he was not counseled on the procedures for obtaining post-service medical treatment at the Department of Veterans Affairs (VA) for injuries that occurred during the period of his active duty.

   a.  He states that the supporting documentation regarding his injuries is filed in his military medical records at Womack Army Medical Center, Fort Bragg, NC. However, he does not reside in North Carolina, so he is not able to obtain copies of his military medical records.  The injuries he sustained on active duty consist of two concussions (that periodically cause blackout spells), hernia repair, strained spinal disc, post-traumatic stress disorder, and severe anxiety.

   b.  He was discharged in 2002 and has lived with a less than honorable discharge for almost 13 years.  He has been advised by officials at the VA to submit an application for upgrade of the characterization of his service.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).


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 and entered active duty in the Regular Army, on
6 January 2000, for a period of 4 years.  He was awarded military occupational specialty 14S (Avenger Crewmember).

3.  On 14 May 2002, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ):

* Article 86, for being absent without leave (AWOL) from 6 February 2002 to 20 March 2002
* Article 112a, for wrongful use of marijuana during the period 1 November 2001 to 27 March 2002

4.  The applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be:

* deprived of many or all Army benefits
* ineligible for many or all benefits administered by the Veterans Administration
* deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions.

	d.  He was also advised that he could submit statements in his own behalf and he elected not to submit a statement.

   e.  The applicant and his counsel placed their signatures on the document.

5.  His chain of command recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

6.  On 12 July 2002, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

7.  A DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) shows, in pertinent part, that the applicant received Army Career Alumni Program counseling on his veterans benefits on 1 August 2002.

8.  The applicant's DD Form 214 shows he was discharged on 1 August 2002 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He had completed 2 years, 6 months, and 26 days of net active service during this period.

9.  The applicant submitted an application to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 2 February 2009, the ADRB notified the applicant that it determined the reason for his discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.

10.  Army Regulation 40-66 (Medical Record Administration and Healthcare Documentation) sets policies and procedures for the preparation, disposition, and use of Army electronic and paper medical records and other healthcare documentation.  Chapter 5 (Service Treatment Records), paragraph 5-30 (Disposing of service treatment records), provides that upon discharge, release from active duty, retirement, death, or transfer from U.S. Army Reserve or Army National Guard of the United States, the member's Service Treatment Record (STR) will be forwarded to the transition center.  If the member is separating, the transition center will forward the STR to the VA Records Center, P.O. Box 5020, St. Louis, MO  63115 no later than the 31st day after the Soldier's effective date of separation.  If the member is filing a claim, the transition center will forward the STR to the VA Regional Office where the veteran is receiving care. 

11.  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.  Chapter 3, 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. 	Chapter 3, 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 contends, in effect, that his discharge should be upgraded because he sustained injuries while on active duty, it has been about 13 years since he was discharged, and the VA has advised him to seek upgrade of the characterization of his service to obtain eligibility for veterans' benefits

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

3.  During the period of service under review, the applicant had 42 days of time lost and he admitted guilt to wrongfully using marijuana.  In addition, he was credited with completing only 2 years, 6 months, and 26 days of his 4-year enlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

4.  The evidence of record shows the STR (military medical record) is transferred to the VA after a Soldier is discharged.  Thus, the VA is the appropriate agency for the applicant to contact if he desires to obtain copies of his STR.

5.  The ABCMR does not grant requests for upgrade of discharges for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

6.  Therefore, in view of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20140019354



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ABCMR Record of Proceedings (cont)                                         AR20140019354



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