IN THE CASE OF:	   

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140019906 


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 under other than honorable conditions(UOTHC) discharge be upgraded to a more favorable discharge that will afford him veterans benefits.

2.  The applicant states, in effect, that he went absent without leave (AWOL) because he was denied leave to attend his great grandmother’s funeral and he was already undergoing administrative discharge processing. 

3.  The applicant provides 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 2 June 1995 for a period of
4 years.  He completed his basic training at Fort Jackson, South Carolina, and his advanced individual training as a military policeman at Fort McClellan, Alabama, and was transferred to Fort Bragg, North Carolina, for his first and only assignment.

3.  On 26 March 1996, the applicant departed AWOL and remained absent in desertion until he was apprehended by civil authorities in Elizabethtown, North Carolina on 25 August 1996 and was transferred to Fort Knox, Kentucky where charges were preferred against him on 4 September 1996.

4.  On 4 September 1996, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a UOTHC discharge and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

5.  The appropriate authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, on 16 October 1996 and directed that he be discharged UOTHC. 

6.  On 8 January 1997, while on excess leave, he was discharged accordingly.  He completed 1 year, 2 months, and 5 days of creditable active service and had 152 days of lost time due to AWOL.

7.  On 5 August 2005, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in order that he could obtain veteran benefits.  After reviewing the available facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge on 14 June 2006.

8.  A review of his official records failed to show evidence indicating he was denied emergency leave.


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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  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 charged, 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.  A UOTHC discharge was normally considered appropriate.

	a.  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.


	b.  Paragraph 3-7b of that regulation 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's voluntary request for discharge 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.
 
3.  The applicant's contentions and supporting documents have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the extensive length of his absence, the fact that he was apprehended instead of surrendering himself and his otherwise undistinguished record of service.  His service simply did not rise to the level of a general discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a 
change in his or her discharge.  The Army also does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140019906





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ABCMR Record of Proceedings (cont)                                         AR20140019906



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