BOARD DATE: 21 October 2010 DOCKET NUMBER: AR20100012822 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 discharge be upgraded to a general discharge. 2. The applicant states he wants to receive his benefits and insurance for his family. 3. The applicant did not provide any additional documentary 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's record shows he enlisted in the Regular Army on 28 August 1996. He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic). 3. His available record shows he left his unit at Fort Hood, TX in an absent without leave (AWOL) status on 15 June 1998 and he was dropped from the rolls on 14 July 1998. On this same date his command preferred court-martial charges against him for one specification of being AWOL. 4. On 9 November 1998, he was apprehended by civil authorities for unauthorized use of a motor vehicle, confined in civil confinement for 35 days, and subsequently returned to military control. 5. The specific facts and circumstances surrounding his discharge are not available for review with this case. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 May 1999 in accordance with Army Regulation 635-200 (Personnel Separations) chapter 10, in lieu of trial by court-martial in pay grade E-1 with an under other than honorable conditions character of service. He completed a total of 2 years, 2 months, and 4 days of creditable active service and he had 182 days of lost time. 6. On 23 July 2009, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 8. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention his under other than honorable conditions discharge should be upgraded to a general discharge so that he may receive benefits and insurance for his family was carefully considered. 2. The ABCMR does not grant relief solely for the purpose of making an applicant eligible for veterans or other benefits. 3. The applicant's record of service shows he was in an AWOL status from 15 June to 9 November 1998 after he was apprehended by civilian authorities he remained in civilian confinement for 35 days. 4. His record shows 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. 5. In the absence of evidence to the contrary it is presumed his separation processing 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 reason for separation therefore were appropriate considering all the facts of the case. Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel. Therefore, he is not entitled to 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) AR20100012822 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100012822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1