IN THE CASE OF:
BOARD DATE: 25 September 2008
DOCKET NUMBER: AR20080008290
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 that his characterization of service be changed from under other than honorable to honorable.
2. The applicant states that the Department of Veterans Affairs (VA) has revised his characterization of service. He adds that his infractions were youthful indiscretions and not breaches of military security.
3. The applicant provides his separation document (DD Form 214), two documents from the VA which show that his discharge has been determined to be under honorable conditions for VA purposes, and a letter from a county veterans service officer.
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. The applicants military records show that he enlisted on 5 September 1978 and was awarded the military occupational specialties of infantryman and construction equipment repairer.
3. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three occasions between 25 September 1979 and 15 June 1981. His offenses were failure to go at the time prescribed to his appointed place of duty (two specifications) and being absent without leave (AWOL) from 2 to 7 April 1980.
4. On 14 May 1979, the applicant was convicted by a summary court-martial of possession of 8 grams of marijuana, of transferring 8 grams of marijuana, and of selling 8 grams of marijuana.
5. On 31 May 1981, the applicant was hospitalized for multiple drug use, including cocaine and marijuana.
6. The applicants records do not contain his discharge packet. However, he was discharged under other than honorable conditions on 15 September 1981 for conduct triable by court-martial under the provisions of Army Regulation 635-200, chapter 10.
7. The DD Form 214 issued to the applicant shows that he had time lost from
2 to 6 April 1980, from 17 to 27 June 1981, and on 2 April 1981.
8. 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.
9. On 24 May 1983, the Army Discharge Review Board (ADRB) denied the applicants request for an upgrade of his discharge.
DISCUSSION AND CONCLUSIONS:
1. Since the applicants discharge packet is not contained in his records, a presumption of regularity must be applied, that what the Army did was correct.
2. The applicants repeated misconduct resulting in three NJPs, one court-martial, and whatever offense(s) formed the basis for his discharge, certainly warranted an under other than honorable discharge.
3. The VA, operating under its own laws and regulations, is authorized to make determinations concerning a veterans entitlement to benefits from that Department. However, the rulings made by the VA are strictly to determine a veterans eligibility for benefits from that Department and do not affect the veterans actual discharge or characterization of service.
4. In view of the foregoing, there is no basis for granting the applicants 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
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) AR20080008290
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ABCMR Record of Proceedings (cont) AR20080008290
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