IN THE CASE OF:
BOARD DATE: 11 August 2009
DOCKET NUMBER: AR20090004981
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 undesirable discharge be upgraded to honorable.
2. The applicant states that he applied for and was granted an "honorable conditions discharge" on 12 January 1977 by the Veterans Administration (VA).
3. The applicant provides a letter, dated 12 January 1977, from the VA and a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his 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 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 applicant enlisted in the Regular Army (RA) on 1 June 1973 for a period of 3 years. He completed training in military occupational specialty (MOS) 15E (Pershing missile crewman) and he attained the rank/grade of specialist four (SP4)/E-4 during his tenure of service.
3. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, the applicant's DD Form 214 shows he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate on 14 June 1976 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service. He had served a total of 3 years and 14 days of creditable active service.
4. In support of his claim, the applicant provided a letter, dated 12 January 1977, from the VA which states, in pertinent part, that "Your discharge from military service on June 14, 1976 was found to have been issued under honorable conditions." and "You are entitled to 45 months education benefits to be used before June 15, 1986."
5. There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
6. 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. At the time, an undesirable discharge was normally considered appropriate.
7. 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 members 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.
8. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he applied for and was granted an "honorable conditions discharge" on 12 January 1977 by the VA was noted. However, the VA operates under its own guidelines and determines benefits and entitlements under their jurisdiction. The VA's actions do not fall under the purview of this Board or the Department of Defense.
2. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, 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) AR20090004981
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