IN THE CASE OF:	  

		BOARD DATE:	  10 September 2015

		DOCKET NUMBER:  AR20150001588 


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 that his discharge under other than honorable conditions be upgraded to a more favorable discharge that will afford him Department of Veterans Affairs (VA) benefits.

2.  The applicant states that he was a model noncommissioned officer who served his country proudly in the Reserves and on active duty and he received an Army Commendation Medal.  He goes on to state that he was told that he would be able to use his VA benefits based on his previous discharges.

3.  The applicant provides copies of his DD Forms 214 (Certificates of Release or Discharge from Active Duty), discharge certificates, and a certificate of service. 

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 United States Army Reserve (USAR) on           27 September 1976.  He was ordered to active duty training on 16 January 1977. He completed his one-station unit training as an electrician at Fort Leonard Wood, Missouri and was released from active duty training on 28 April 1976 and returned to his USAR unit.  He was advanced to the pay grade of E-4 on 1 June 1979.

3.  He was honorably discharged from the USAR on 29 November 1979 to enlist in the Regular Army.

4.  On 30 November 1979, he enlisted in the Regular Army for a period of           3 years and assignment to Fort Bragg, North Carolina.  He subsequently served two tours in Korea and was assigned to Fort Polk, Louisiana on 5 February 1984.

5.  On 3 April 1984, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 21 February to 21 March 1984.

6.  On 25 October 1984, NJP was imposed against the applicant for the wrongful use of marijuana.

7.  On 10 January 1985, charges were preferred against the applicant for being AWOL from 27 November to 18 December 1984 and again for the wrongful use of marijuana.

8.  On 17 January 1985, 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 discharge under other than honorable conditions 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.

9.  The appropriate authority (a major general) approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10 on 
28 January 1985 and directed that he be discharged under other than honorable conditions.


10.  Accordingly, he was discharged under other than honorable conditions on 
6 February 1985, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 5 years and 16 days of active service and had 51 days of lost time lost due to AWOL.

11.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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 discharge under other than honorable conditions was 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 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 have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the repeated nature of his misconduct.  His service simply did not rise to the level of a general discharge.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits. 

4.  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)                                         AR20150001588





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ABCMR Record of Proceedings (cont)                                         AR20150001588



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