IN THE CASE OF:	

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100000989 


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 to a general discharge.

2.  The applicant states his discharge should be upgraded to general so that he can receive Department of Veterans Affairs (DVA) treatment for the human immunodeficiency virus (HIV) infection he acquired while in the service.

3.  The applicant provides no additional argument or evidence to support his request.

CONSIDERATION OF EVIDENCE:

1.  With 7 months and 24 days of prior active service and 5 years, 7 months, and 13 days of prior inactive duty, the applicant enlisted in the Regular Army on
2 August 2000 as a specialist (SPC)/E-4.  On 13 November 2003, he reenlisted as a sergeant (SGT)/E-5.

2.  He was awarded Army Commendation Medals on 19 March 2001, 21 December 2001, and 6 January 2004; the Army Achievement Medal on 4 April 2002; and the Army Good Conduct Medal in August 2003. 

3.  On 22 February 2006, charges were preferred against the applicant for making false official statements, larceny by writing bad checks, and forgery.

4.  The applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the DVA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  The separation authority approved the request and directed issuance of an under other than honorable conditions discharge.

7.  On 20 April 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  He had completed 5 years, 8 months, and
19 days of creditable active service this period.

8.  On 18 November 2009, the Army Discharge Review Board considered the available evidence and the applicant's same contention and denied his request to upgrade the discharge.

9.  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 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.

10.  The Manual for Courts-Martial (MCM) Table of Maximum Punishments sets forth the maximum punishments for offenses under the UCMJ.  A punitive discharge is authorized for any and all of the applicant's offenses.

11.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes his under other than honorable conditions discharge should be upgraded to a general discharge so that he can receive DVA treatment for the HIV infection he acquired while in the service.

2.  The applicant provided no evidence concerning how he contracted HIV and no rationale as to why his having HIV warrants upgrading his discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The applicant's service was appropriately characterized by the offenses for which he was charged.

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.

5.  The ABCMR does not grant requests for upgrade of discharges solely 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 a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the DVA.

6.  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)                                         AR20100000989



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)