IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080016824 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to either an honorable discharge (HD) or a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he is requesting that his UOTHC discharge be upgraded to either and HD or GD so that he may qualify for Department of Veterans Affairs (VA) benefits.

3.  The applicant provides the following documents in support of his application:  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); DD Form 214 (Certificate of Release or Discharge from Active Duty); VA Form 21-526 (Application for Pension); VA Form 21-4142 (Authorization and Consent to Release Information); VA Forms 21-4138 (Statement in Support of Claim); Mental Health Treatment Plan; DD Form 215 (Correction to DD Form 214); United States Army Enlisted Eligibility Activity letter, dated 18 July 1986; and recommendation for elimination.

CONSIDERATION OF EVIDENCE:

1.  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 AC87-09255 on 21 September 1988.

2.  The applicant now provides as new evidence and/or arguments forms related to his application for and denial of VA benefits.

3.  The applicant's records show he enlisted in the Regular Army and entered active duty on 29 December 1978.  He was trained in and awarded military occupational specialty 19F (Tank Driver) and specialist four/E-4 was the highest rank he attained while serving on active duty.

4.  The applicant's record further shows that during his active duty tenure, he earned the Army Good Conduct Medal, Expert Marksmanship Qualification Badge with Grenade and Pistol Bars, and Marksman Marksmanship Qualification Badge with Rifle Bar.  The record documents no acts of valor, significant achievement, or service warranting special recognition.

5.  On 28 June 1977, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order.  His punishment for this offense was a reduction to private first class (PFC)/E-3, which was suspended for 6 months, and 14 days of extra duty and restriction.

6.  On 30 May 1979, the applicant accepted NJP for absenting himself from his appointed place of duty without authority.  His punishment for this offense was a forfeiture of $20.00 and 14 days of extra duty and restriction.

7.  On 5 June 1979, the applicant accepted NJP for three specifications of failing to go to his appointed place of duty at the time prescribed.  His punishment for these offenses was a forfeiture of $200.00 for 2 months ($100.00 per month suspended for 120 days), reduction to PFC/E-3, and 21 days of extra duty.

8.  On 26 June 1979, the applicant accepted NJP for failing to go to his appointed place of duty at the time prescribed.  His punishment for this offense was a reduction to private/E-1, which was suspended for 120 days, 7 days of correctional custody, and 7 days of extra duty.

9.  On 21 August 1979, the unit commander notified the applicant that he intended to initiate separation action against him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), by reason of misconduct.  The unit commander cited the applicant's record of NJP and his numerous counseling for misconduct as the basis for taking the action.

10.  On 23 August 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of those rights.  Subsequent to this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board, and he elected not to submit a statement in his own behalf.

11.  On 24 September 1979, the separation authority approved the separation action and directed that the applicant receive a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 9 October 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 9 months and 11 days of active military service at the time of his discharge.  A DD Form 215 was published on 10 September 1987, which corrected the following items of the applicant's original DD Form 214 to read as follows:  item 12d (Total Prior Active Service) - 3-6-10; item 12e (Total Prior Inactive Service) - 0-2-25; item 12f (Foreign Service) - 0-0-25; and  item 27 (Reenlistment Code) - RE3, RE3C.

12.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade to his discharge within that board's 
15-year statute of limitations.

13.  Army Regulation 635-200 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general or honorable discharge if such is merited by the Soldier’s overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded in order to allow him to receive VA benefits was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on four separate occasions and his failure to respond to chain of command counseling for various acts of misconduct.

4.  The record shows the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  Further, based on his disciplinary history, the applicant's record clearly did not support the issue of an HD or GD by the separation authority at the time of his discharge, and does not support an upgrade at this late date. As a result, it would not be appropriate to grant the requested relief in this case.

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 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 AC87-09255, dated 21 September 1988.



      _________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)                                         AR20080016824



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ABCMR Record of Proceedings (cont)                                         AR20080016824



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