BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090010882 


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, upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge so he can continue to receive Department of Veterans Affairs (DVA) benefits.

2.  The applicant states that while he was in the Army, he battled with some personal issues that were not addressed and they may have been the reason he was discharged under other than honorable conditions.  He states that he believes that he served the best that he could as his DD Form 214 (Report of Separation from Active Duty) shows with his award of the Marksman Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Grenade Bar.

3.  The applicant provides the following in support of his application:

	a.  a copy of his DD Form 214 (Report of Separation from Active duty) for the period ending 28 December 1978;

	b.  a letter from the DVA (Department of Veterans Affairs), dated 12 March 2008;

	c.  a list of DVA Inpatient and Outpatient Medications, dated 25 April 1999;

	d.  a list of DVA Medical Appointments, printed on 9 October 2008; and 

	e.  a DVA Order Details sheet.
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.  On 25 May 1976, the applicant enlisted in the Regular Army (RA) in Chicago, IL, for 3 years, in the rank/grade of private (PV1)/E-1.  He successfully completed his training and he was awarded military occupational specialty (MOS) 11B (infantryman).  He was advanced to the rank/grade of private (PV2)/E-2 on 5 November 1976 and to the rank/grade of private first class (PFC)/E-3 on
1 February 1977.

3.  The applicant's records show that he had nonjudicial punishment (NJP) imposed against him on five separate occasions between 7 October 1977 and 15 September 1978 for wrongfully having in his possession residue of marijuana, assaulting two Soldiers, being absent without leave (AWOL) from 15 June 1978 until 18 June 1978, being disrespectful in language towards his superior noncommissioned officer, and being AWOL from 28 August 1978 until 31 August 1978.  His punishments consisted of reductions in pay grade, correctional custody, forfeitures of pay, and extra duty.

4.  On 16 October 1978, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct, due to frequent incidents of a discreditable nature with civil or military authorities.  He acknowledged receipt of the notification and, after consulting with counsel, he elected not to submit a statement in his own behalf.

5.  The appropriate authority approved the recommendation for discharge on 21 November 1978 and he directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  Accordingly, on 28 December 1978, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to frequent incidents of a discreditable nature with civil or military authorities.  He had completed 2 years, 6 months, and 28 days of total active service.

7.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  The applicant submits a letter dated 12 March 2008 confirming his enrollment in the DVA health care system and documents listing the medications that he is currently taking and showing his scheduled appointments between April 2009 and July 2009.

9.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or was unlikely to succeed.

10.  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 under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge so he could continue to receive DVA benefits.

2.  His contentions have been noted and the documents that he submitted in support of his application have been considered.  However, there is no evidence in the available record, nor has the applicant submitted sufficient evidence to support upgrading his discharge.

3.  The documents that the applicant submitted simply confirm his enrollment in the DVA health care system, list the medications that he is currently taking, and show his scheduled appointments between April 2009 and July 2009.  These documents do not show error or injustice in the type of discharge that he received or in the reasons therefore.

4.  The applicant's records show that he had NJP imposed against him on five separate occasions for his numerous acts of misconduct and considering the nature of his offense, the type of discharge that he received properly characterizes his overall record of service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, 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)                                         AR20090010882



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ABCMR Record of Proceedings (cont)                                         AR20090010882



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