BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160001595 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160001595 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160001595 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 under other than honorable conditions to a general discharge under honorable conditions. 2. The applicant states he is unable to get Department of Veteran Affairs (VA) medical benefits. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 26 April 1988. 3. On 12 May 1989, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 25 March to 1 May 1989. 4. On 12 May 1989, the applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he admitted guilt to one or more of the offenses charged. He acknowledged that he made this request of his own free will and had not been subjected to any coercion by any person. He did not submit statements in his own behalf. He was advised he could be issued an under other than honorable conditions discharged and its effects on him. He acknowledged: * he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life due to the issuance of a discharge under other than honorable conditions * he could apply to the Army Discharge Review Board for a review of his discharge 5. The immediate and intermediate commanders recommended approval with the issuance of a discharge under other than honorable conditions. 6. On 25 September 1989, the separation authority approved the applicant's 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, with the issuance of a Discharge Certificate under Other Than Honorable Conditions and reduction to the rank of private/E-1. 7. On 16 October 1989, he was discharged under other than honorable conditions. He completed 1 year, 4 months, and 14 days of total active military service. His DD Form 214 shows his period of lost time from 25 March to 30 April 1989. 8. His service records do not indicate he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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 characterization of service would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 3-7 states 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: 1. The applicant's service records show court-martial charges were preferred against him for being AWOL from 25 March to 30 April 1989. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving advice from legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 3. An under other than honorable conditions characterization of service was normally appropriate for a Soldier discharged under chapter 10. The evidence of record does not indicate the actions taken in the applicant's case were in error or unjust. The characterization of service he received was commensurate with the reason for his discharge. 4. There are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits. The applicant must provide evidence to show his discharge was rendered unjustly, in error, or that there were mitigating circumstances. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001595 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001595 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2