IN THE CASE OF: BOARD DATE: 25 October 2011 DOCKET NUMBER: AR20110011198 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 discharge. 2. The applicant states that the discharge that he received is almost 20 years old. Since then he has achieved many goals in his life and have become a better person. He has not used alcohol or drugs for over 14 years. He wishes to obtain a college degree with a general discharge. A general discharge will help to achieve his next goal in his life. The applicant adds that he does have one honorable discharge. His 4 years of service prior to the incident he was a model Soldier. Alcohol and poor judgment had a role to play. A general discharge would allow him to redeem himself and return his honor for letting the Army down. The Army can benefit from his upgrade to a general discharge by having one less Soldier in the statistics of failure. 3. The applicant provides no documentary evidence in support of his application. 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 for a period of 3 years. He was trained in and awarded military occupational specialty 16R (Vulcan Crewmember). On 14 September 1988, the applicant was discharged after serving 3 years, 10 months and 28 days of honorable active service. He immediately reenlisted on 15 September 1988 for a period 4 years. 3. Court-martial charge were preferred against the applicant for one specification of assault on a female Soldier, for entering into the room of the female Soldier with the intent to commit an assault and for being drunk and disorderly. 4. On 4 September 1991, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial. In his request for discharge he acknowledged that he was guilty of the charges against him and he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request. Prior to completing the form, the applicant was afforded the opportunity to consult with an appointed counsel, who fully advised him of his rights. After being advised of his rights he acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. There is no indication in his military record that he submitted a statement in his own behalf. In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge and he would be deprived of many or all Army benefits. 5. On 6 September 1991, the unit commander recommended approval of the applicant’s request for discharge for the good of the service. 6. On 11 September 1991, the Commanding General approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of a discharge under than honorable condition and that he be reduced to private pay grade E-1. 7. On 25 September 1991, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service with the issuance of a discharge under other than honorable condition. It further shows that at the time he had completed 6 years, 11 months, and 9 days of total active service. 8. On 20 December 1996, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred, Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 10. 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. 11. 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. The applicant's contentions was carefully considered and found to be insufficient in merit. There is no evidence and the applicant did not present any evidence which shows the discharge he received in 1991 was unjust and or unfair. 2. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice. Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial. 3. Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The record contains no indication of procedural or other errors that would have jeopardized his rights. Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel. 4. The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility 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 and any questions regarding eligibility for VA benefits should be addressed to the VA. 5. 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) AR20110011198 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110011198 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1