IN THE CASE OF:	  

		BOARD DATE:	    20 July 2010

		DOCKET NUMBER:  AR20090021237 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he needs the upgrade to obtain Department of Veterans Affairs (VA) benefits due to his current homeless situation.

3.  The applicant did not provide any provide any additional documentary evidence in support of his request.

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 in pay grade E-1 on 12 November 1976 for a period of 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  The applicant received four counseling statements from April 1977 through December 1977 for the following infractions:

* importance of personal appearance
* non-promotion for pre-Inspector General inspection results
* for sleeping while on guard duty and overall poor performance
* uniform appearance, job performance, and bad attitude

4.  From July 1977 through February 1979, the applicant received six nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following infractions:

* disobeying a lawful order
* for being absent without leave from 1 to 5 September 1978
* wrongfully wearing unclean combat boots
* four incidents of failure to go at the prescribed time to his appointed place of duty

5.  The applicant's imposed punishments included reductions, forfeitures, restrictions, and extra duties.

6.  On 11 April 1979, the unit commander notified the applicant he was initiating separation action on him under the provisions of paragraph 14-33b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct.  The unit commander cited the applicant's continual disciplinary problems and his Article 15's as the reasons for his recommendation.

7.  On 29 May 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects and of the rights available to him.  He waived his right to an administrative separation board and to consulting counsel.  The applicant also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if less than an honorable discharge was issued to him.  He further understood that as the result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

8.  On 8 June 1979, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, and directed he receive a discharge under other than honorable conditions.  On 6 July 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of paragraph 14-33b(1), Army Regulation 635-200, by reason of misconduct.  He completed a total of 2 years, 7 months, and 1 day of active service.

9.  There is no indication that 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 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.

11.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Paragraph 3-7b of Army Regulation 635-200 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 contention that his discharge should be upgraded to an honorable discharge to obtain veterans' benefits because he is homeless was carefully considered.  However, the Army does not now have and has never had a policy that provided for an automatic upgrade of a discharge based on the passage of time, benefits eligibility, or any other reason.  A discharge may be upgraded by the Army Discharge Review Board or this Board if the action is supported by the member's overall record of service and/or his post-service conduct.

2.  The evidence of record confirms the applicant's separation processing for misconduct was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. 
However, it does reveal a significant disciplinary history that includes his acceptance of nonjudicial punishment on six separate occasions.  As a result, his record was not sufficiently meritorious to support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting an honorable or a general discharge.

4.  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)                                         AR20090021237



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ABCMR Record of Proceedings (cont)                                         AR20090021237



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