IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090010194 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge (GD). 

2.  The applicant states, in effect, that due to his health and medical issues such as a heart attack, an aneurism, loss of a kidney, and no job, he is unable to afford any health insurance.  He further states he is requesting that his UOTHC discharge be upgraded to a GD so that he may receive medical care at the Department of Veterans Affairs (VA) Hospital.

3.  The applicant provides no documentation 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 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 record shows he enlisted in the Regular Army and entered active duty on 6 March 1978.  It also shows he was trained in and awarded military occupational specialty 19E (Armor Crewman) and that private/E-2 was the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) that he accrued 26 days of time lost due to confinement during the period from 26 July 1979 through 21 August 1979.

4.  The applicant's record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:  9 May 1978 for wrongfully possessing marijuana, 17 May 1978 for sleeping on his lookout post, 8 June 1978 for wrongfully possessing marijuana, 26 December 1978 for sleeping on his post as a sentinel, and 5 June 1979 for stealing a German field jacket from another individual.

5.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 (Report of Separation from Active Duty) that shows he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service and that he received a discharge UOTHC on 27 August 1979.  This document also confirms he completed a total of 1 year, 4 months, and 26 days of creditable active military service and that he accrued 26 days of time lost due to confinement.  

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

7.  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 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 discharge (HD) or GD is authorized, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

8.  Paragraph 3-7a of the same regulation provides that an honorable discharge (HD) 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.  Paragraph 3-7b provides that a GD 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 that his UOTHC discharge be upgraded to a GD so that he may obtain medical benefits through the VA was carefully considered.  However, although his current health problems are unfortunate, this factor is not sufficiently mitigating to support granting the requested relief.

2.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of his discharge and that confirms he accrued 26 days of lost time.  The DD Form 214 carries with it a presumption of government regularity in the discharge process.

3.  The evidence of record shows the applicant accrued an extensive disciplinary history that included his acceptance of NJP on five separate occasions and a period of confinement.  As a result, his overall record of service did not support the issuance of a GD by the separation authority at the time of his discharge nor does it support an upgrade of his discharge at this time.

4.  The applicant’s DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

5.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout his separation process.

6.  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.

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)                                         AR20090010194



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ABCMR Record of Proceedings (cont)                                         AR20090010194



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