BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090021523 


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 he has served honorably in civilian life and he is currently in medical distress due to service-related injuries and requires medical attention at a Department of Veterans Affairs (VA) medical facility.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army in Manchester, NH on 19 January 1976 for a period of 4 years, training under the airborne infantry training option, and assignment to Fort Bragg, NC.

3.  He completed his basic training at Fort Dix, NJ and he was transferred to Fort Polk, LA to undergo his advanced individual training (AIT) as an infantryman.  On 7 April 1976, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for failing to obey a lawful order.

4.  He completed his AIT and he was transferred to Fort Benning, GA, where he completed his basic airborne training and he was then transferred to Fort Bragg for assignment to the 82d Airborne Division.

5.  During the period 4 November 1976 to 31 March 1978, NJP was imposed against him on four occasions for offenses including:

* Five specifications of failing to repair
* Wrongful possession of marijuana
* Intentionally altering sick slips
* Willfully and unlawfully altering a public record

6.  On 19 January 1978, the applicant deliberately terminated his airborne status and he was transferred to Fort Riley, KS on 21 September 1978.

7.  On 5 April 1979, NJP was imposed against him for violating a lawful general regulation.  His records also show that he went absent without leave (AWOL) from 26 June to 1 July 1979; however, the record is silent as to any punishment imposed for that offense.

8.  On 19 July 1979, NJP was imposed against him for four specifications of failing to repair.

9.  On 2 October 1979, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-33b(1), for misconduct due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.

10.  After consulting with defense counsel on 1 November 1979, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

11.  The appropriate authority (a major general) approved the request for discharge on 10 December 1979 and directed that the applicant be discharged with an under other than honorable conditions discharge.

12.  Accordingly, he was discharged with an under other than honorable conditions discharge on 21 December 1979, under the provisions of Army Regulation 635-200, paragraph 14-33b (1) for misconduct due to frequent involvement in incidents of a discreditable nature with civil and military authorities.  He had served 3 years, 10 months, and 21 days of total active service.

13.  On 5 January 1983, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 12 August 1983, after reviewing all of the available evidence in his case, the ADRB unanimously voted to deny his request.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  Army Regulation 635-200, paragraph 3-7b, also 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  While the applicant claims he has honorably served in civilian life since his discharge, that in itself is not mitigating on the period of service in question or the misconduct which served as the basis for upgrading his under other than honorable conditions discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely on the passage of time or for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests an upgrade of his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20090021523



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021523



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1