IN THE CASE OF:	  

	BOARD DATE:	  22 July 2008

	DOCKET NUMBER:  AR20080008452 


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 her discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that she did not receive a discharge under other than honorable conditions.  If she had received such a discharge, then she would not have been able to receive the Department of Veterans Affairs (VA) medical benefits that she did after her discharge.  She also received a VA Certificate of Eligibility for a home loan.  Now she is trying to get her home loan approved and is running into issues that she was not aware of because of her discharge.   

3.  The applicant provides documentation of her VA medical treatment. 

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.  On 14 May 1979, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty (MOS) 76V (Material Storage and Handling Specialist).  She was subsequently assigned for duty at Fort Hood, Texas.

3.  On 3 April 1982, the applicant was reassigned to Fort Campbell, Kentucky for duty with the 227th General Supply Company.

4.  On 12 July 1982, charges were preferred under the Uniform Code of Military Justice for violation of Article 132, fraud against the United States (two specifications); and for violation of Article 134, false swearing.

5.  On 16 July 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In her request for discharge, the applicant indicated that she understood that by requesting discharge, she was admitting guilt to the charge against her, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  She further acknowledged she understood that if her discharge request was approved, she could be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law.   

7.  On 11 August 1982, the separation authority approved the applicant’s request for discharge and directed that she be issued a discharge under other than honorable conditions.  On 19 August 1982, the applicant was discharged accordingly.  She had completed a total of 3 years, 3 months and 6 days of creditable active military service.

8.  On 9 December 1986, the applicant’s DD Form 214 was administratively reissued to correct the characterization of her service from honorable to under other than honorable conditions.  The applicant was not available to sign it.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.

11.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 5 years for violation of Article 132, fraud against the United States; and a punitive discharge and confinement for 3 years for violation of Article 134, false swearing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The evidence shows that the applicant's DD Form 214 was administratively corrected to change her characterization to under other than honorable conditions.  This error may have resulted in the applicant receiving unauthorized VA benefits.

4.  The applicant’s contention that she did not receive a discharge under other than honorable conditions is not supported by the evidence of record.  Furthermore, the desire to obtain or retain VA benefits is not a justifiable basis for upgrading the characterization of service.

5.  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.
6.  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
      
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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080008452



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