IN THE CASE OF:	   

		BOARD DATE:	        30 April 2009

		DOCKET NUMBER:  AR20090002762 


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 under other than honorable conditions discharge be upgraded. 

2.  The applicant states, in effect, he just found out that he has a "dishonorable discharge."  The applicant contends that when he left active duty he had a general discharge.  He is requesting the upgrade due to failing health and the need for urgent medical care.

3.  The applicant provides no additional documentary evidence in support of this application.

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 records show he enlisted in the Regular Army on 1 December 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

3.  On 27 December 1979, the applicant appeared before a special court-martial and was found guilty of possession and selling cocaine.  The sentence was adjudged on 20 February 1980.  The sentence consisted of a reduction in rank to private (PV1)/E-1, confinement at hard labor for six months, and a forfeiture of $299.00 pay per month for six months.

4.  On 5 September 1980, the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to attend afternoon formation on 29 August 1980.  The punishment consisted of a forfeiture of $100.00 and 14 days of extra duty and restriction.

5.  A DD Form 458 (Charge Sheet), dated 8 January 1981, shows the applicant was charged with assisting in the larceny of a .45 caliber pistol by hiding the pistol in his briefcase. 

6.  On 8 January 1981, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  On 2 February 1981, the appropriate authority approved the applicant’s request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed he be furnished an under other than honorable conditions discharge.  

8.  On 4 February 1981, the applicant acknowledged receipt of the approved discharge action by the separation authority.

9.  On 6 February 1981, the applicant was discharged with an under other than honorable conditions discharge.  The applicant completed a total of 3 years, 1 month, and 7 days of creditable active service with 29 days of lost time due to military confinement. 

10.  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.

11.  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, 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.

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade has been carefully considered and determined to be without merit.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for medical benefits.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations in which the applicant must admit guilt of the charges, as he acknowledged on 8 January 1981.

4.  The available evidence shows the applicant was punished under the UCMJ on two occasions and had 29 days of lost time.  Based on this record of indiscipline, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for army personnel.  Therefore, he is not entitled to either a general under honorable conditions or an honorable discharge.

5.  Lacking evidence to the contrary, it appears that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  It is also concluded that the characterization of service and the reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090002762



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ABCMR Record of Proceedings (cont)                                         AR20090002762



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