IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090007426 


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 (UOTHC) discharge be upgraded to honorable so that he may be eligible to enroll at the Department of Veterans Affairs (VA) and receive medical benefits. 

2.  The applicant states, in effect, that he is currently laid off and he has no health insurance or medical help. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army in the rank of private (PV2)/E-2 for 3 years on 21 May 1979.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained was Private First Class (PFC)/E-3.

3.  The available evidence shows nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice was imposed against the applicant:

	a.  on 29 May 1980 for absenting himself from his unit from about 0900 hours until 1300 hours, on or about 22 May 1980; for failure to go to his appointed place of duty at the prescribed time at about 0900 hours on 24 May 1980; for absenting himself from his unit from about 1300 hours until 1630 hours on         27 May 1980; and for failure to go to his appointed place of duty at the prescribed time on 30 May 1980.  His punishment consisted of reduction and a forfeiture of pay. 

	b.  on 4 August 1980, for being absent without leave (AWOL) from his unit from on or about 17 July until 31 July 1980.  His punishment consisted of reduction and a forfeiture of pay.

4.  On 20 November 1980, the applicant was convicted by a summary court-martial (SCM) for leaving his appointed place of duty 7 November 1980, and for disobeying a lawful order on 5 November 1980.  His sentence included a forfeiture of $50.00 pay for 1 month, and 28 days of restriction.

5.  On 15 December 1980, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations), for misconduct, frequent incidents of a discreditable nature with civil or military authorities.

6.  On the same date, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He acknowledged that he understood that he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement on his own behalf.


7.  On 30 December 1980, the battalion commander recommended approval.  On 14 January 1981, the brigade commander recommended approval.
On 9 February 1981, the discharge approval authority approved the applicant’s separation action and directed the issuance of an UOTHC discharge.  

8.  On 13 February 1981, the applicant was discharged for misconduct – frequent incidents of a discreditable nature with civil or military authorities under the provisions of paragraph 14-33b(1), Army Regulation 635-200 and issued an UOTHC discharge.  He completed 1 year, 8 months, and 10 days of creditable active service with 14 days of lost time.

9.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally considered appropriate.

10.  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, or if the service is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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 contends that his UOTHC discharge should be upgraded so that he may be eligible for VA benefits, due to being laid off and having no medical coverage.



2.  The applicant served 1 year and 8 months of active duty service.  During that time, he received NJP on two occasions, one SCM conviction and he had
14 days of lost time due to being AWOL.  His military record was decidedly unacceptable; therefore, he is not entitled to an honorable or a general discharge.

3.  Discharges are not upgraded solely for the purpose of making the individual eligible for VA benefits.  Each case is individually reviewed and a determination is made based on its merits when an applicant requests an upgrade of the discharge.

4.  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.

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)                                         AR20090007426



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ABCMR Record of Proceedings (cont)                                         AR20090007426



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