IN THE CASE OF: BOARD DATE: 7 December 2010 DOCKET NUMBER: AR20100014636 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. 2. The applicant states he is trying to obtain Department of Veterans Affairs (VA) benefits because of hearing loss due to being in the artillery. He also states he is seeking answers to his previous applications filed in 2003. 3. The applicant provides no additional information. 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 states he is seeking answers for his previous applications in 2003. Records show the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) on 23 January 2003. His application was received on 30 January 2003 by the Review Boards Agency, St. Louis, MO. On 1 February 2003, by letter, the applicant was notified that the Army Discharge Review Board was not the applicable board to review his case since he had exceeded its 15-year statute of limitations. He was advised to appeal to this Board and he was provided a DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, section 1552) to do so. 3. On 9 February 2003, the applicant submitted a DD Form 149 which was received on 21 February 2003. In reviewing his application it was determined his request dealt with whether there was an injustice or error during the processing of his discharge. Such a request would require review of the administrative and legal proceedings conducted; however, a copy of such proceedings was not a part of his military personnel records. As such, on 16 September 2003, by letter, the ABCMR administratively closed this case because the chapter 10 discharge packet was not in his available records. 4. Since responses were sent to the applicant in response to his previous applications, this portion of the applicant's request will not be further discussed in these Proceedings. A copy of the aforementioned letter responses will be provided with these Proceedings. 5. The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 6 years on 7 February 1980. On 10 February 1980, he was discharged from the USAR DEP and on 11 February 1980, he enlisted in the Regular Army for a period of 3 years. 6. Following completion of all required military training he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and he was assigned to Company A, 3rd Battalion, 19th Infantry, Fort Stewart, GA. 7. The applicant's records contain two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for: a. willfully violating a lawful general regulation on 20 October 1980 by wearing "flare-based sideburns and not being clean-shaven," for which he received a forfeiture of $100.00 pay per month for 1 months, 7 days of correctional custody, and reduction to private (PV1)/E-1; and b. being absent from his place of duty from 0630 hours, 7 January 1981 to 0630 hours, 8 January 1981, for which he received a forfeiture of $100.00 pay per month for 1 month, and 14 days of restriction and extra duty. 8. The applicant was discharged on 26 January 1971 with an under other than honorable conditions discharge. He served 11 months and 16 days of his 3-year enlistment. 9. The applicant’s record does not contain a copy of his administrative discharge packet. However, the applicant’s record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which identifies the reason and characterization of his discharge. The DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ. 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 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. 12. Army Regulation 635-200, 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. 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. It appears court-martial charges were preferred against the applicant. Had he been tried and convicted, he could have received a punitive discharge and a sentence to confinement. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 3. The Army does not upgrade discharges solely for the purpose of qualifying applicants for VA benefits. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted only if the Board determines that the characterization of service or the reasons for discharge or both were improper or inequitable. 4. In view of the foregoing, he is not entitled to either a general or an honorable 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) AR20100014636 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100014636 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1