IN THE CASE OF:	

		BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140019691


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, an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states, in effect, the following:

* he was threatened by his first sergeant, which put him in danger and he nearly had an asthma attack
* he is a veteran of Operation Desert Storm and suffers from Gulf War syndrome
* he has filed for disability and has sought medical help for his sickness; however, he was turned down because of his type of discharge
* he is seeking an upgrade to get the medical help he needs from the Department of Veterans Affairs (VA)  

3.  The applicant provides three character reference letters 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 in the Regular Army on 8 February 1989.  He completed his military training and was awarded military occupational specialty (MOS) 57E (Laundry and Bath Specialist). 

3.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge process.  However, his record contains the following documents:

     a.  DA Form 4187-E (Personnel Action), which shows his duty status changing from present for duty to absent without leave (AWOL) on 2 June 1992.

     b.  DA Form 4187-E, which shows his duty status changing from absent without leave to dropped from the rolls on 2 July 1992.

     c.  DD Form 458 (Charge Sheet), dated 7 July 1992, which documented charges against the applicant for violating Article(s) of the Uniform Code of Military Justice (UCMJ), in that he did on or about 2 June 1992, without authority, absent himself from his unit, the 259th Field Service Company, located at Fort Bragg, NC, and did remain so absent.

     d.  DD Form 616 (Report of Return of Absentee), which shows he surrendered to military authorities at Fort Knox, KY on 8 March 1993, and was transferred to the Commander, Personnel Control Facility (PCF), Fort Knox, KY.

     e.  An undated memorandum for the Commander, PCF, subject: Admission of AWOL for Administrative Purposes, signed by the applicant and his counsel declaring, in part, the following:

          (1)  I have been advised by my defense counsel that at the present time the government has not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  This is not due to any fault of the government but merely to the time required to request and mail the documents and records.  I realize my defense counsel is limited by the few records that are available as to the advice he can give.  Nevertheless, knowing all this to be true, I waive all defenses that may have become known had my defense counsel been able to review my records.    
          (2)  I knowingly, willingly, and voluntarily declare that I was AWOL from the U.S. Army from 2 June 1992 to 8 March 1993.  I make this admission for administrative purposes only so I may process out of the Army and realize in doing so I may be given an under other than honorable conditions discharge.  

          (3)  I further declare that my military defense counsel has explained to me to my complete understanding and satisfaction all the legal and social ramifications of that type of discharge and what it will mean to me in the future.

          (4)  I further declare that this agreement only pertains to my unauthorized absent without leave.  I realize the Army may (any time prior to my discharge) prefer charges for any other military crimes that may be pending against me. 

     f.  Orders 106-00201, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 16 April 1993, reassigning him to the U.S. Army Transition Point and discharging him from the U.S. Army effective 29 April 1993. 

4.  His DD Form 214 confirms that, on 29 April 1993, he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trail by court-martial with his service characterized as under other than honorable conditions.  He was discharged in the rank/grade of private/E-1.  He completed 3 years, 5 months, and 18 days of net active service.  His DD Form 214 also shows in –  

* Block 12 (Foreign Service), he completed 6 months and 27 days of foreign service
* Block 18 (Remarks), "Service in [Southwest Asia] 31 Aug 1990 to 27 Mar 1991"
* Block 29 (Dates of Time Lost During this Period), in part, "920602-930307" (279 days)

5.  There is no evidence in his records nor has he provided any evidence to show he was threatened by his chain of command.  

6.  His medical records were not available for review.  However, there is no documentation in the available record, nor has he provided any documentation showing he suffers from Gulf War syndrome or any other medical conditions.  

7.  The applicant provides three character references with his application.  Each statese the applicant works hard and has high ethical standards.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 

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.   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, the 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

     b.  Paragraph 3-7a states 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 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered.  

2.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, the available evidence shows he was charged with being AWOL and was absent for 279 days before he was discharged on 29 April 1993.  

3.   His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  

4.  Discharges under the provisions of chapter 10 are voluntary requests.  His memorandum to the Commander, PCF, declared his admission of guilt of being AWOL.  

5.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.  Further, based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory. Therefore, he is not entitled to either a general discharge or an honorable discharge.

6.  The applicant contends his first sergeant threatened him, putting him in danger and he nearly had an asthma attack.  However, there is no evidence in his records nor has he provided any evidence that in any way supports these contentions. 

7.  The applicant also contends that he suffers from Gulf War ayndrome as a result of his service in Operation Desert Storm.  The Board acknowledges his service in Southwest Asia; however, there is no documentation in the available record, nor has he provided any documentation that validates his contentions with respect to Gulf War ayndrome or any other medical conditions he may have suffered from during his period of active military service.

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

9.  In view of the above, his request should be denied.




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)                                         AR20110019051



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ABCMR Record of Proceedings (cont)                                         AR20140019691



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