IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080002011 


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, that his dishonorable discharge (DD) be upgraded in order to receive VA (Department of Veterans Affairs) benefits.

2.  The applicant states, in effect, he was not separated at Fort Sill, Oklahoma, and that he had two General Courts-Martial Orders - Numbers 89 and 8. 

3.  In an additional statement, the applicant states that there have been some errors with his discharge.  He was never stationed at Fort Sill.  So in his opinion, the station where separated is incorrect.  His original orders support Orders Number 89.  Secondly, he still does not know the other reason for his separation. Thirdly, although he agreed to a dishonorable discharge, his lawyer assured him that he would not actually receive one.  Had he known this, he would have never agreed to the plea deal.  Nevertheless, his dishonorable discharge has taken its toll on him.  When he was young, he attempted to come back into the Army and about that time, his injuries began to affect him.  He has been to employment offices and there were jobs that he qualified for but that actually stated, "dishonorable discharges need not apply."

4.  He states that he is currently disabled and living on his $637.00 monthly SSI (Supplemental Security Income) payments.  He has tried to apply for VA disability benefits; however, he has received no decision.  He has been told that his type of discharge is the reason for the delay, Claim Number 4xxxxxxxx1.  He is writing to this Board for a sincere consideration in upgrading his dishonorable discharge.
5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of General Court-Martial Order Numbers 89 and 8 in support of his request.

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's record shows he enlisted in the Regular Army on 27 June 1989, for 6 years, with an established expiration of term of service (ETS) of 26 June 1995. He was trained as a Unit Supply Specialist, in military occupational specialty (MOS), 92Y.  He was promoted to SPC/E-4 effective 2 July 1991.

3.  On 26 February 1992, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful possession of and use of hashish/ marijuana, on 2 December 1991.  His punishment consisted of a reduction to pay grade E-3, a forfeiture of $100 per month for 3 months, and 15 days extra duty.

4.  The applicant was promoted back to pay grade E-4 on an unknown date. 

5.  On 30 September 1992, the applicant was punished under Article 15, UCMJ, for drunk driving.  His punishment consisted of a reduction to pay grade E-2 (suspended for 90 days), a forfeiture of pay, and 14 days restriction and extra duty.

6.  The applicant was barred from reenlistment on 30 September 1992. 

7.  In November 1992, the command enrolled the applicant in Track II of the Alcohol and Drug Addiction Control Program (ADACP). 

8.  On 18 March 1993, the applicant was punished under Article 15, UCMJ, while serving in the rank and pay grade of SPC/E-4, for failing to go to his appointed place of duty and for being drunk and disorderly on 12 February 1993.  His punishment consisted of a reduction to pay grade E-3 and 14 days restriction and extra duty.

9.  At a general court-martial on 3 November 1993, while assigned to the 67th Combat Support Hospital, the applicant entered mixed pleas to a number of offenses under the UCMJ.  He was found guilty of wrongfully operating a Government-owned vehicle, within eight hours of having consumed alcohol; of 
willfully suffering government property to be destroyed; of recklessly spoiling property of the Federal Republic of Germany; and of reckless driving while drunk and impaired causing injury to another person.  His sentence consisted of a reduction to pay grade E-1; a forfeiture of all pay; confinement for 3 years; to pay the US a fine in the amount of $5,000.00; and if said fine was not paid, to be further confined for 1 year; and a dishonorable discharge.  The court-martial convening authority approved only 24 months of confinement and a fine of $5000.00 without any conditions, and he approved the remainder of the sentence as adjudged.  The military judge ordered the sentence executed, except for the dishonorable discharge. 

10.  On 30 November 1993, orders were published reassigning the applicant from his overseas assignment, the 67th Medical Evacuation Hospital, to the US Army Regional Confinement Facility, Fort Lewis, Washington, effective 13 December 1993.

11.  On 10 March 1995, the applicant was reassigned from Fort Lewis, to the Personnel and Support Battalion, Fort Sill, with a reporting date of 31 March 1995; however, he was still attached to the Fort Lewis Correctional Holding Detachment, for courts, boards, and UCMJ action.  Additional instructions in his reassignment orders indicated that he would be programmed for release from confinement at that facility (Fort Lewis) no later than his minimum release date, or as deemed appropriate.

12.  On 20 April 1995, the United States Army Court of Criminal Appeals affirmed the approved findings and sentence.  On 20 November 1995, the Court of Criminal Appeals denied the applicant's petition for review.

13.  On 6 February 1996, Headquarters, US Army Field Artillery Center and Fort Sill, published General Court-Martial Order Number 8.  This order announced that the sentence imposed was finally affirmed, and, Article 71(c) having been complied with, directed execution of the dishonorable discharge.

14.  On 11 March 1996, the applicant was discharged from the Army pursuant to the sentence of the general court-martial and was issued a dishonorable discharge. He had completed 5 years, 2 months, and 7 days of creditable service.

15.  The applicant's case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 of that regulation provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

17.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

18.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  VA Pamphlet 80-08-1 (Federal Benefits for Veterans and Dependents) describes the variety of Federal benefits available to veterans and their dependents.  Eligibility for most benefits is based upon discharge from active military service under other than dishonorable conditions.  Honorable and general discharges qualify a veteran for most VA benefits.  Dishonorable and bad conduct discharges which result from general court-martial may bar VA benefits. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was tried by a general court-martial and was found guilty of wrongfully operating a Government-owned vehicle after consumption of alcohol; destruction of Government property; recklessly spoiling non-military property of the Federal Republic of Germany; and reckless driving, while impaired.  He was discharged pursuant to the sentence of a general court-martial and was issued a dishonorable discharge after the sentence was affirmed.

2.  The general court-martial the applicant received on 3 November 1993 was warranted by the gravity of the offenses charged.  A dishonorable discharge is adjudged by a court-martial when it determines a Soldier should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment.  The applicant's offenses, when weighed with his overall disciplinary history, warranted this punishment.

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  He has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant contends that his dishonorable discharge should be upgraded in order for him to obtain VA benefits.  His additional statement has been considered regarding the issue of benefits; however, the Board does not change the character of service for the purpose of enabling former service members to qualify for VA benefits.  The Board has no authority to direct the VA to award benefits.  Since most VA benefits are based on an individual's service, eligibility for VA benefits is dependent upon the characterization of an individual's discharge.  

5.  The applicant alleges that he was never stationed at Fort Sill, and in his opinion, the station where separated is incorrect.  The evidence shows that he was initially assigned overseas when he was tried by a general court-martial and was then reassigned to the Army Regional Confinement Facility, Fort Lewis, to finish serving his confinement.  He was later reassigned to Fort Sill, but remained attached to the Fort Lewis Correctional Holding Detachment, for courts, boards, and UCMJ action.  Additional instructions indicated that he would be programmed for release from confinement at that facility not later than the minimum release date, or as deemed appropriate.  It is clear that his subsequent assignment to Fort Sill was for administrative processing purposes only.  This was indicated by his reassignment orders stating "no travel involved" and was the standard operating procedure for administrative handling inmates after their release.

6.  The applicant alleges that he still does not know the discharge reason for his separation; but agreed to a dishonorable discharge.  Despite his contention that his lawyer assured him that he would not actually received a dishonorable discharge, there is no evidence to support his contention.  The applicant now states that had he known this, he would have never agreed to the plea.  The evidence clearly shows the reason for his separation was as a result of a general court-martial.  Further his record of trial reveals that the military judge properly advised the applicant he could received a DD; and yet, he still voluntarily proceeded with his guilty plea.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080002011



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ABCMR Record of Proceedings (cont)                                         AR20080002011



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