IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090019506 


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 (UOTHC) to a general under honorable conditions discharge (GD).

2.  The applicant states he has been diagnosed with a Post Traumatic Stress Disorder (PTSD) by the Department of Veterans Affairs (VA) and needs his discharge upgraded to access 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 record shows he enlisted in the Regular Army on 6 June 1975. He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The record shows the applicant was advanced to the rank/grade of specialist four (SP4)/E-4 on 6 September 1976, and this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history shows he accrued 56 days of time lost during five separate periods of being absent without leave (AWOL) between
15 March 1977 and 1 June 1977.  It also shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  9 February 1976, for leaving his place of duty without authority on 
29 January 1976 and failing to go at the time prescribed to his appointed place of duty at the time prescribed on 7 February 1976; and

	b.  1 April 1977, for being AWOL from 3-14 March 1977 and from
15-22 March 1977.

5.  A DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 134 and Article 91 of the UCMJ as follows:

	a.  Article 134, breaching restraint imposed while undergoing the punishment of correctional custody by going from his appointed place of duty without authority on 9 April 1977; and

	b.  Article 91, by disobeying a lawful order from his superior noncommissioned officer on 7 April 1977.

6.  On 15 April 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service.

7.  In his discharge request, the applicant acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  He also acknowledged he could receive a UOTHC discharge and understood the possible effects of that discharge.  He also acknowledged that by receiving a UOTHC discharge, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law; and he could encounter substantial prejudice in civilian life as a result of receiving a UOTHC discharge.

8.  The applicant's record contains no medical treatment records or other documents indicating he suffered from a disqualifying medical or mental condition at the time of his discharge that would have supported his separation processing through medical channels.

9.  On 5 May 1977, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 1 June 1977, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 10 months, and 1 day of creditable active military service and accrued 56 days of lost time due to AWOL.

10.  On 20 March 1979, the Army Discharge Review Board determined the applicant's discharge was proper and equitable and denied his request for an upgrade of his discharge.

11.  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.

12.  Paragraph 3-7b of the same regulation provides guidance on characterization of service and discharges.  It states 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 for an upgrade of his discharge because he has been diagnosed with a PTSD and is seeking VA medical benefits has been carefully considered.  However, the evidence is not sufficient to support this claim.  Furthermore, the Board does not upgrade discharges solely for the purpose of gaining eligibility for veterans' benefits.

2.  The applicant's record is void of any medical records or other documents indicating he suffered from a medical or mental condition that would have supported his separation processing through medical channels at the time of his discharge.  

3.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army for the good of the service in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record documents no acts of valor or significant achievement. However, it does reveal a significant disciplinary history beyond the court-martial charges that led to his discharge.  This includes his acceptance of NJP on two separate occasions and his accrual of 56 days of time lost due to AWOL.

5.  In view of the fact the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge, his overall record of undistinguished service did not support the issuance of a GD or honorable discharge by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

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 this 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)                                         AR20090019506



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ABCMR Record of Proceedings (cont)                                         AR20090019506



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