RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 April 2008
DOCKET NUMBER: AR20080001783
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that her discharge under other than honorable conditions be upgraded to general.
2. The applicant states, in effect, that an upgrade of her discharge to honorable would enable her to receive medical benefits from the Department of Veterans Affairs (VA).
3. The applicant provides a copy of her request for a medical examination prior to separation and the approval page from her administrative discharge packet.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 25 November 1986, the applicant enlisted in the Regular Army. She completed her initial training and was awarded military occupational specialty 91A1O (Medical Specialist).
3. In 1991, the applicant completed training as a practical nurse and was awarded the corresponding MOS of 91C.
4. On 1 September 1992, the applicant was promoted to sergeant, pay
grade E-5.
5. On 17 April 1995, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice. The continuation sheet listing her offense(s) is not available for review. The punishment included reduction to grade E-4 and 30 days extra duty. The proceedings show that she indicated her intent to appeal and to submit additional matters; however, there is no available evidence of any appeal.
6. The discharge packet is missing from her military records. The applicant provided the approval page of that packet showing that on 29 November 1995, the commanding general approved her request for separation under the provisions of Army Regulation 635-200, chapter 10.
7. On 30 November 1995, the applicant requested to receive a complete medical examination prior to her separation. Her service medical records are not available for review.
8. Her Certificate of Release or Discharge from Active Duty (DD Form 214) shows that she was administratively discharged on 6 December 1995, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. Her service was characterized as under other than honorable conditions. She had completed 9 years and 12 days of creditable active duty.
9. On 9 January 1998, the Army Discharge Review Board denied the applicant's request for an upgrade of her discharge.
10. Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the authority for her discharge.
2. The available records do not contain any details of the misconduct that led to the applicant's discharge. Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support her contention that her discharge was unjust.
3. There is no policy, regulation, directive or law that provides for the upgrade of an individual's discharge solely for the purpose of obtaining VA medical benefits.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
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
ABCMR Record of Proceedings (cont) AR20080001783
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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