IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005793 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he received a general discharge (GD) or a GD under medical conditions vice an under other than honorable conditions (UOTHC) discharge. 2. The applicant states: a. He was involved in a major automobile accident on active duty, sometime between 1989 or 1990, while he was stationed at Fort Bragg, NC. The accident occurred in Fayetteville, NC. b. His injuries were very extensive and traumatic and he could have easily died as the vehicle rolled several times. Some of the injuries sustained were loss of consciousness, other head trauma, broken back, ruptured kidney, and internal hemorrhaging. c. After months in the hospital, he was placed back on active duty, yet was incapable of performing his regular duties. d. He was young and scared and he made a bad decision and went absent without leave (AWOL) without approval because he was ridiculed for going to sick call. He realized it was a terrible decision and was later picked up and returned to the Army. e. He was told and led to believe that he was being discharged under the status of a GD; however, some personal misfortune had led him to inquire into military benefits eligibility and he found out from the Department of Veterans Affairs (VA) in San Diego, CA, that he received a UOTHC Discharge Certificate. f. He believes this was a mistake and is requesting an upgrade to a GD for medical reasons. 3. The applicant provides a self-authored letter. 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. On 4 February 1988, the applicant enlisted in the Regular Army (RA). After initial training, he was awarded military occupational specialty (MOS) 11B (Infantryman). 3. On 22 December 1988, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period from on or about 11 October 1988 to 20 December 1988 (70 days). 4. After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the UCMJ, he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge. 5. In his request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 6. Furthermore, DA Form 2496 (Disposition Form) dated 22 December 1988, shows he did not desire a physical evaluation prior to his separation. 7. On 12 January 1989, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC Discharge Certificate, and on 30 January 1989, the applicant was discharged accordingly. He had completed a total of 9 months and 18 days of creditable active service and accrued 70 days of time lost. 8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 9. There are no medical records to show the applicant was involved in a car accident while on active duty, that he received a line of duty determination, or that a medical provider found he had a condition that warranted referral to the disability evaluation system, nor does he provide any documentation to support his claim. 10. Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel a. Chapter 10 of that regulation provides that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. 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. 11. Under the UCMJ, the maximum punishment allowed for violation of Article 86 for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his DD Form 214 should be corrected to show his discharge was upgraded because, in essence, he claims he was injured while on active duty and now wants to obtain medical care from the VA; however, he provides no supporting documentation, nor does his medical record reveal that he was injured on active duty in the line of duty. 2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 3. After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged he had been advised of and understood his rights under the UCMJ, he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge. 4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge. 5. The applicant's desire to obtain medical benefits is not justification for an upgrade of his 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) AR20140012761 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005793 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1