IN THE CASE OF:	  

		BOARD DATE:	  5 August 2008

		DOCKET NUMBER:  AR20080005351 


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, reconsideration of his earlier petition for an upgrade of his under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states, in effect, that he understands that during his first enlistment, which he entered just out of high school, he made a mistake; however, he has since honorably served in the Pennsylvania Army National Guard (PAARNG) and the United States Army Reserve (USAR).  He states that he was injured during a very windy jump, but his unit did not believe he was injured, and he has since applied for benefits from the Department of Veterans Affairs (DVA), which have been denied based on his 1982 discharge.  He claims he is now requesting an upgrade of his 1982 UOTHC discharge for the purpose of applying for medical benefits from the DVA.  He claims he has served honorably in every tour of service from 1985 through the present, which includes service in Bosnia.  He claims he has 18 years of military service and with the exception of the enlistment that resulted in his 1982 discharge, all his service has been honorable.  He claims he needs an upgrade of his discharge in order to receive medical treatment from the DVA for an ongoing medical condition in order to get back to duty.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statements; DVA Rating Decision; Regular Army and ARNG Separation Documents (DD Form 214 & NGB Form 22); Award and Achievement Certificates; Academic Evaluation Report; Discharge Certificates; Task Force Saber Memorandum; Line of Duty Investigation; and Patient Movement and Medication Forms.

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC-97-10656, on 
4 November 1998.  

3.  During its original review of the case, the Board concluded the applicant's discharge processing was accomplished in accordance with the applicable regulation with no indication of procedural errors which would have jeopardized the applicant's rights.  It further found that the type of discharge received by the applicant and reasons therefore were appropriate given the nature of the discharge, and that the applicant had failed to provide convincing evidence that his discharge was unjust and should be upgraded.  

4.  The applicant now provides record documents related to his service, and medical document related to conditions he now suffers from as new evidence and argument in support of his reconsideration request.  Included in the medical documents is a Task Force Saber Memorandum, dated 12 February 2003, which indicates the applicant was suffering from low back pain and urinary incontinence and based on his history of a neurological defect, plans were made to transport him for further evaluation.  Subsequent to the evaluation, the applicant was returned home based on his medical conditions.  He also provides a DVA rating decision, dated 30 April 2002, which shows the applicant claimed service- connection for residuals of a spinal injury from 1981; however, the DVA indicated no service medical records were available from the period from 6 January 1981 through 2 January 1982, and that the applicant had failed to provide documentation regarding an upgrade of his 1982 discharge.   

5.  The applicant's record shows that on 6 January 1981, after having served in the PAARNG and USAR, he enlisted in the RA and entered active duty.  His record shows he served in military occupational specialty (MOS) 11B (Infantryman) and that during his active duty tenure, he earned the Parachutist Badge and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  His disciplinary history during this period of active duty service includes a summary court-martial conviction of violating Articles 89, 90, and 91 (3 specifications) of the Uniform Code of Military Justice (UCMJ).  The resultant sentence was reduction to private/E-1 (PV1), a forfeiture of pay, and 30 days confinement at hard labor.  

6.  On 1 February 1982, the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, and received an UOTHC discharge.  The DD Form 214 he was issued at the time shows he completed 1 year and 2 days of his RA enlistment, 6 months and 19 days of prior active military service, and 1 year and 13 days of prior inactive military service.  

7.  The record also shows the applicant fraudulently enlisted in the RA on 
6 March 1985, and was discharged on 20 June 1985, under the provisions of paragraph 7-17b, Army Regulation 635-200, by reason of fraudulent entry - concealment of prior enlistment.  The DD Form 214 he was issued shows he completed 3 months and 15 days of active military service and that he received a general, under honorable conditions discharge (GD) for this period of active duty service.   The record further shows the applicant has served in the Reserve Components (RC) [PAARNG and USAR], from 23 June 1991 through the present. 

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although an honorable discharge (HD) or a GD may be issued by the separation authority if warranted by the member's overall record of service, an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 1982 discharge should be upgraded so he can receive DVA benefits has been carefully considered.  However, the record confirms his 1982 UOTHC discharge was proper and equitable.  As a result, there is insufficient evidence to support this claim.  

2.  Although his subsequent RC service has been honorable, the record confirms his UOTHC discharge accurately reflects his undistinguished record of service during that period.  Absent evidence that his service during the period supported the issuance of an HD or GD by the separation authority at the time, there is an insufficient evidentiary basis to support granting the requested relief at this late date.  

3.  The applicant is advised that entitlement to DVA medical benefits is not within the purview of the Board.  These benefits are administered by the DVA under its own regulations and policies.  Any claim he has for service-connected disabilities for subsequent periods of honorable service, such as the injury he received in the line of duty in 2003, should be addressed to that agency.

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 this requirement or that would support amendment of the original Board decision in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AC-97-10656, dated 4 November 1998.



      _______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)                                         AR20080005351



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ABCMR Record of Proceedings (cont)                                         AR20080005351


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