IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150005825 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 military records by upgrading his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions. 2. The applicant states, in effect, he proudly served more than 24 consecutive months of active service with an excellent record. When he was told the Army was cutting back and it would be in the best interest of the Government if he took the early out program, he felt like he was no longer needed. He was persuaded to not reenlist and start pursuing another career. He left just a few months prior to the early out date he was given so he could secure a new job. Because of his excellent record prior to his unauthorized absence, he asks the Board to consider the fact that he would have finished his term of service if the Army had not been cutting back. He is currently incarcerated in a Pennsylvania State correctional facility. He is being housed in a unit specially designed for incarcerated veterans. The Department of Veterans Affairs (VA) is working with the State Department of Corrections to assist inmates in transitioning back into the community. The VA provides many workshops in the prison to help veterans with their reentry plan. The focus is on housing, employment, health care, and getting linked up with a VA center to provide case management. However, some veterans, such as himself, are not eligible for everything the VA has to offer because of their discharge. The local VA center gave him an application and encouraged him to apply to this Board for an upgrade of his discharge. An upgrade of his discharge will increase his chances for a successful future by being able to participate in the VA program and never return to prison. He is working very hard to obtain this goal. Shortly after his discharge from the Army he was diagnosed with having a bi-polar disorder. His condition may have contributed to the rash decision he made to leave the military before completing his term of service. An upgrade of his discharge would also help him with his continued mental health treatment. 3. The applicant provides no additional documentation. 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 22 January 1986, the applicant enlisted in the Regular Army. He was an artilleryman trained as a fire direction specialist. On 1 August 1987, he was advanced to specialist four, pay grade E-4. 3. The applicant was in an absent without leave (AWOL) status from on or about 23 May to 7 July 1988 until he was returned to military control at the Personnel Confinement Facility, Fort Dix, New Jersey. 4. On 19 July 1988, charges were preferred against the applicant for being AWOL during the period discussed above. 5. On or about 20 July 1988, the applicant consulted with legal counsel. 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 Uniform Code of Military Justice (UCMJ), and that he could receive an 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 an UOTHC discharge. 6. In his request for discharge, the applicant indicated that he understood that 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. 7. On 10 August 1988, the separation authority approved the applicant’s request for discharge and directed the issuance of a DD Form 794A (Discharge Under Other Than Honorable Conditions Certificate). On 30 August 1988, the applicant was discharged accordingly. He completed 2 years, 5 months, and 25 days of creditable active military service and accrued 44 days of lost time. 8. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets the policies, standards and procedures to insure the readiness of the force and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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 (bad conduct discharge or dishonorable 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 trial by court-martial. A discharge under other than honorable conditions (undesirable discharge certificate) was normally considered appropriate. Only commanders exercising general courts-martial jurisdiction are authorized to approve requests for discharge for the good of the service and to order the discharge. 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. 10. 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 military records should be corrected by upgrading his (UOTHC) discharge to general so that he may be eligible for VA benefits. 2. The evidence of record confirms the applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met. The rights of the applicant were fully protected throughout the separation process. 3. The applicant's assertion that he went AWOL as a result of being told he was no longer needed and this may have been due, in part, to his being bi-polar, is not supported by any documentary evidence. 4. The applicant's satisfactory performance of duty and advancement to specialist four shows he was fully capable and knew how to Soldier. 5. The applicant's desire to obtain VA benefits is not a sufficient basis upon which to justify 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) AR20150001474 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005825 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1