IN THE CASE OF:	

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090018821 


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

2.  The applicant states that he is requesting an upgrade to gain eligibility for Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides no additional documentary evidence 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's military records show he enlisted in the Regular Army on 8 November 1979.  He was awarded the military occupational specialty of military police.  The highest rank/grade he held during his tenure of service was private first class (PFC)/E-3.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions during the period 11 February to 18 June 1981 for being drunk and disorderly and for failing to go to his prescribed place of duty.

4.  The applicant was charged with behaving with disrespect toward two commissioned officers; failing to obey an order; breaking restriction on two occasions; wrongfully possessing marihuana in hashish form, a wooden smoking device containing marihuana residue, and three pieces of tin foil containing marihuana in the hashish form; being disorderly in a public place; and wrongfully communicating threats to injure two noncommissioned officers.

5.  On 29 July 1981, the applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service.

6.  He acknowledged he understood he could request discharge for the good of the service because of the charges preferred against him, each of which authorized the imposition of a bad conduct or dishonorable discharge.  The applicant acknowledged he was making the request of his own free will, was not subjected to any coercion whatever by any person, and he had been advised of the implications that were attached to his request.  He acknowledged that he was guilty of the charges against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant consulted with counsel and was advised of his rights.  He further acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Other Than Honorable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

7.  The applicant's unit commander recommended approval of his request for discharge and recommended that he be discharged under other than honorable conditions.  On 14 August 1981, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed he be issued an under other than honorable conditions discharge certificate.

8.  On 3 September 1981, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 year, 9 months, and 26 days of active military service.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 at any time after the charges have been preferred.  At the time of the applicant's separation, an under other than honorable conditions discharge was appropriate.

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's records show he accepted NJP on two occasions for being drunk and disorderly and for failing to go to his prescribed place of duty.  His records also show he was charged with behaving with disrespect toward two commissioned officers; failing to obey an order; breaking restriction on two occasions; wrongfully possessing marihuana, a wooden smoking device containing marihuana residue, and three pieces of tin foil containing marihuana; being disorderly in a public place; and wrongfully communicating threats to injure two noncommissioned officers.  This serious misconduct warranted an under other than honorable conditions discharge.

2.  The applicant admitted he was guilty of the charges against him and requested discharge in lieu of court-martial.  He was voluntarily discharged under the provisions of chapter 10 of Army Regulation 635-200.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  Properly issued discharges are not upgraded for the sole purpose of establishing eligibility for other programs or benefits.

5.  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)                                         AR20090018821



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ABCMR Record of Proceedings (cont)                                         AR20090018821



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