IN THE CASE OF: BOARD DATE: 25 August 2011 DOCKET NUMBER: AR20110002402 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 upgrade of his under other than honorable conditions discharge to an honorable discharge for entitlement to Department of Veterans Affairs (DVA) benefits. 2. The applicant states, in effect: * He was forced * He was without counsel * He was distressed and distraught 3. The applicant provides no 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 enlisted in the Regular Army on 4 March 1987 for a period of 4 years. He completed training and he was awarded military occupational specialty 63W (wheel vehicle repairer). 3. Nonjudicial punishment (NJP) was imposed against the applicant on: * 22 August 1988 for disorderly conduct * 19 September 1988 for failing to go at the time prescribed to his appointed place of duty * 28 March 1989 for avoiding service as an enlisted Soldier 4. On 19 May 1989, a bar to reenlistment was imposed against the applicant. 5. On 3 January 1990, charges were preferred against the applicant for: * Conspiracy to commit larceny of a motor vehicle * Willfully suffer military property to be lost by disposing of the property in a trash dumpster * Stealing a motor vehicle * Making a false official statement (two specifications) 6. On 4 January 1990, he consulted with counsel and requested 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 stated "I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person." He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA), he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. He elected not to make a statement in his own behalf. 7. On 5 January 1990, the separation authority approved the applicant's request for discharge with an under other than honorable conditions discharge. 8. On 18 January 1990, he was discharged accordingly. He completed 2 years, 10 months, and 15 days of creditable active service. 9. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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. 11. Army Regulation 635-200, 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. 12. 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. DISCUSSION AND CONCLUSIONS: 1. A discharge is not changed for the purpose of obtaining DVA benefits. 2. The evidence of record does not support the applicant's contentions he was forced and without counsel. Evidence shows he consulted with counsel on 4 January 1990 and in his voluntary request for discharge he stated "I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person." 3. His record of service included 3 NJPs, a bar to reenlistment, and serious offenses for which court-martial charges were preferred against him. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge. 4. His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so. 5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 6. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20110002402 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110002402 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1