IN THE CASE OF: BOARD DATE: 14 October 2014 DOCKET NUMBER: AR20140004167 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. 2. The applicant states: a. He was young, scared, and never given a chance to tell his side of the story. He feels he should have been offered help or rehabilitation, but he was just booted out. He has had to live under bridges and in jails ever since. b. He never received follow-up medical treatment after being operated on in Germany and he has had a lot of problems since. He states his "guts" were bulging out from lifting the heavy ammunition. He is not after money, just medical treatment. c. He was a good Soldier, commended as the best tanker in Troop K, and he did not want to leave the Army; however, the choice wasn't his. He further states he would not have ended up an alcoholic if he had never been sent to Germany and now he never sees a doctor unless he goes to jail for being drunk. d. His father was a 30-year Air Force veteran and a casualty of Vietnam. His father gave his life for his country; therefore, he hopes the Board will see fit to help save his life. 3. The applicant provides no additional evidence. 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 17 October 1984 at the age of 19 years, 6 months, and 2 days. He completed training and was awarded military occupational specialty 19K (M1 Abrams Armor Crewman). Upon completion of his training he was assigned to Troop K, 3rd Battalion, 2nd Armored Cavalry Regiment, in the Federal Republic of Germany. 3. Evidence shows court-martial charges were preferred against him for violating Article 112a of the Uniform Code of Military Justice (UCMJ); specifically, for wrongful distribution of hashish. 4. On 25 July 1985, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ, the possible effects of discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 5. In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He further acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service. He chose not to submit a statement on his behalf. 6. His immediate and intermediate commanders recommended approval of his discharge action with the issuance of an under other than honorable conditions discharge. 7. On 7 August 1985, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade. 8. He was discharged on 28 August 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. His DD Form 214 further shows he completed 10 months and 12 days of creditable active service with no time lost. 9. There is no indication he petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations. 10. 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. 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 contention that his undesirable discharge should be upgraded to an honorable discharge was carefully considered; however, it was determined to lack merit. He voluntarily chose to commit the offense which ultimately led him to face court-martial charges that could have resulted in a dishonorable or bad conduct discharge. Instead, he chose to request a voluntary discharge. 2. His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service. 3. With respect to his age and maturity there is insufficient evidence which indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 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. 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 Department of Veterans Affairs. 5. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory; therefore, he is not entitled to either an honorable or a general discharge. 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) AR20140004167 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140004167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1