IN THE CASE OF:	 

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090015111 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states he received an under other than honorable conditions discharge due to a field grade Article 15 for not reporting back to his post during the weekend.  He states the issues leading to his discharge were not of a severe nature and now he is older and wants the opportunity to enroll in Department of Veterans Affairs (VA) health care.

3.  The applicant provides no additional evidence 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 military personnel records show he enlisted in the Regular Army on 31 January 1980.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).

3.  On 12 May 1980, the applicant was assigned to the 4th Battalion, 37th Armor, at Fort Knox KY.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 18 August 1980, 21 August 1980, and 11 September 1980 for

* damaging a privately owned vehicle
* being drunk and disorderly
* being absent from his appointed place of duty
* failing to go at the prescribed time to his appointed place of duty
* failing to obey a lawful order from a noncommissioned officer (NCO)
* using disrespectful language toward an NCO
* communicating a threat toward an NCO

5.  On 5 November 1980, court-martial charges were preferred against the applicant for

* using disrespectful language toward an NCO
* three specifications of assaulting another private
* failing to go at the prescribed time to his appointed place of duty
* being drunk in company billets

6.  The applicant voluntarily requested discharge for the good of the service.  He submitted a statement in his own behalf in which he stated he didn't think he could handle the pressure of the Army and it would be best if he got out of the Army.

7.  The applicant acknowledged he understood the elements of the offense he was charged with and he was

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits

9.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge if his request is approved, and of the procedures and rights available to him.

10.  On 26 November 1980, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

11.  On 5 December 1980, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be reduced to private/pay grade E-1 and that he be discharged under other than honorable conditions.

12.  On 12 December 1980, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of conduct triable by court-martial.  He had completed 10 months and 12 days of active service that was characterized as under other than honorable conditions.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred.  A discharge under other than honorable conditions was normally considered appropriate.

15.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 his under other than honorable conditions discharge should be upgraded to a general discharge.  He contends the issues leading to his discharge were not severe and he now needs to enroll in VA health care.

2.  The charges preferred against the applicant included three specifications for assault on another private.  Therefore, his contention concerning the non-severity of the issues is contradicted by the charges preferred against him.

3.  The applicant's infractions of discipline occurred over a 3-month period of his 10-month period of service and included, in addition to his court-martial charges, NJP on three occasions.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

5.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.

6.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

8.  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 that requirement.

9.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090015111



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ABCMR Record of Proceedings (cont)                                         AR20090015111



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