IN THE CASE OF: BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150005372 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, an upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states, in effect, he was honorably discharged for immediate reenlistment on 19 April 1981 and 27 January 1985. He further states, in effect, he is seeking benefits from the Department of Veterans Affairs (VA). 3. The applicant provides two DA Forms 256A (Honorable Discharge Certificate) and a 3-page letter from the VA. 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 1978. He completed his initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember). 3. His DA Form 2-1 (Personnel Qualification Record – Part II) indicates he was absent without leave (AWOL) for the period 26 April through 2 May 1989. 4. On 19 September 1989, while serving in the rank/grade of staff sergeant/E-6, court-martial charges were preferred against him for, without authority, absenting himself from his organization for the period of 2 June through 10 September 1989. 5. On 19 September 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 6. In his request for discharge, the applicant acknowledged that: * he was making this request of his own free will and had not been coerced by any person whatsoever * he understood by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he understood if the 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 * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf 7. The applicant's immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions character of service. 8. Consistent with the chain of command's recommendations, on 10 October 1989, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, directed his reduction to the lowest enlisted grade, if applicable, and the issuance of an under other than honorable conditions discharge. The applicant was accordingly discharged on 11 December 1989. 9. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service, in lieu of trial by a court-martial with a character of service of under other than honorable conditions. This form further confirms he completed 10 years, 10 months, and 10 days of creditable active service with lost time from 26 April to 2 May 1989 and 2 June to 9 September 1989. 10. The applicant petitioned the Army Discharge Review Board to upgrade his discharge; however, on 26 June 1998, he was notified the Board denied his request. 11. The applicant provides two Honorable Discharge Certificates and a 3-page letter from the VA that notes his military service for the period 20 April 1985 through 11 December 1989 is not considered honorable for VA purposes. 12. 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. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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 contention that his discharge should be upgraded in order to receive VA benefits was carefully considered. 2. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. 3. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The applicant was AWOL from his organization on two separate occasions. Based on his misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge. 5. In addition, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. The granting of veteran's benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for benefits should be addressed to the VA. 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) AR20150005372 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005372 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1