IN THE CASE OF:	

		BOARD DATE:	  9 April 2010

		DOCKET NUMBER:  AR20090017366 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states that his character of service should be changed because his service was more than honorable.  Although he may have had some issues just before being discharged, the time he spent in the Army was well served.  Even after being injured during a training exercise, he continued to serve his country and his unit.  He believes that being discharged before his initial enlistment terminated should stand as punishment enough.  He sees no reason to further punish him by having this derogatory discharge over his head.  He is presently seeking medical treatment for injuries he sustained on active duty.  He received a letter from the Department of Veteran Affairs (VA) that stated he was not eligible for any benefits because of the character of his discharge.

3.  The applicant provides copies of a DA Form 4700 (Medical Record - Supplemental Medical Data), a DA Form 3349 (Physical Profile Board Proceedings), his DD Form 214 (Certificate of Release or Discharge from Active Duty), his DD Form 215 (Correction to DD Form 214), and a letter from the VA.

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 records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 5 June 1980.  On 10 June 1980, he was discharged from the USAR DEP and he enlisted in the Regular Army in the rank/grade of private (PV1)/E-1 on 11 June 1980 for 3 years.  He completed training and he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was advanced to private (PV2)/E-2 on 11 December 1980, which was the highest rank he held during his period of service.

3.  On 15 January 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order and being disrespectful in language towards a superior noncommissioned officer on 13 January 1981.  The punishment included a forfeiture of $50.00 per month for one month and extra duty and restriction for
14 days.

4.  On 4 March 1981, the applicant accepted NJP for failing to obey a lawful order on 27 February 1981.  The punishment included a reduction to PV1, forfeiture of $50.00 per month for one month, and extra duty and restriction for
14 days.

5.  On 27 March 1981, the applicant accepted punishment under Article 15, UCMJ, for disobeying a lawful order from a superior commissioned officer on 24 March 1981.  The punishment included extra duty and restriction for 45 days.

6.  A DA Form 3349, dated 24 July 1981, shows the applicant was assigned a permanent profile for bilaterally symmetrical high frequency sensorineural hearing loss.  It was determined that based on the permanent change in the applicant’s profile he could no longer perform the primary duties of his MOS.

7.  On 27 July 1981, a non-promotion block was removed and the applicant was again advanced to PV2/E-2 on 1 August 1981.

8.  On 2 September 1981, his primary MOS of 13B was withdrawn and he was assigned MOS 76Y (Unit Supply Specialist).
9.  On 10 September 1981, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty on 5 September 1981.  The punishment included a reduction to PV1/E-1, a forfeiture of $110.00 per month for one month, and extra duty and restriction for 14 days.

10.  On 10 September 1981, the applicant was convicted by a summary court-martial of behaving disrespectfully towards and disobeying a lawful command from a superior commissioned officer on 19 August 1981, and disobeying a lawful command from two superior noncommissioned officers on 19 August 1981.  He was sentenced to a reduction to PV1/E-1, a forfeiture of $334.00 per month for one month, and confinement at hard labor for 30 days.  The sentence was adjudged and approved and ordered duly executed on 14 September 1981.

11.  The applicant was reported absent without leave (AWOL) on 15 September 1981 and dropped from the rolls (DFR) of the Army on the same day.

12.  The applicant was returned to military control on 9 October 1981.

13.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 which shows that he was discharged in pay grade E-1 on 9 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.

14.  The applicant was issued a DD Form 215 (Correction to DD Form 214), dated 12 April 1989, correcting the date he entered on active duty; crediting him with 1 year, 3 months, and 6 days of net active service; and showing he had lost time from 15 September through 8 October 1981.

15.  On 15 August 2009, the VA advised the applicant that he was ineligible for VA benefits as a result of his under other than honorable conditions discharge.  He was also advised that he could be eligible for treatment at a VA hospital for any condition determined to be related to his military service and to apply at the nearest VA Medical Center.

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

17.  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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record shows that on 24 July 1981, the applicant was assigned a permanent profile for hearing loss.  The evidence also shows the applicant was punished under Article 15, UCMJ on four occasions for offenses including disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty, and being disrespectful in language towards a superior commissioned officer.  He was also convicted by a summary court-martial for behaving disrespectfully towards and disobeying lawful commands from superior commissioned and noncommissioned officers.  His sentence included a reduction, forfeiture, and confinement.  He departed on AWOL on 15 September 1981 and was carried in a DFR status until his return to military control.  It appears that from his return from AWOL in October 1981, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting an upgrade of his discharge.

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

5.  The applicant's desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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 requested relief.

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)                                         AR20090017366



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ABCMR Record of Proceedings (cont)                                         AR20090017366



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