IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008419 


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 general under honorable conditions discharge be upgraded.

2.  The applicant states, in effect: 

* There were facts prevalent to the case not brought up based on evidence against him
* he was not allowed to go to sick call or make doctor appointments 
* he requests his discharge be upgraded to receive service-connected benefits

3.  The applicant provided a personal statement and military records.

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 26 October 1976.  He completed the basic combat training; however, he did not complete the 13E (Field Artillery Cannon Operator) advanced individual training.  There are no official documents indicating why he did not complete the training.  On 27 January 1977, he was reclassified to 13B (Cannoneer) and completed his advanced individual training on 10 March 1977.  The highest rank he attained while serving on active duty was private first class/E-3.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

	a.  on 18 January 1979, for failing to go at the time prescribed to his appointed place of duty on 27 December 1978, 30 December 1978, and 31 December 1978;

	b.  on 12 February 1979, for willfully disobeying a lawful order from his superior noncommissioned officer; and

	c.  on 13 February 1979, for willfully disobeying a lawful order from his superior commissioned officer.

4.  On 26 February 1979, charges were preferred against the applicant for missing movement and disobeying his superior noncommissioned officer and superior commissioned officer.

5.  On 9 March 1979, the applicant consulted with legal counsel and was advised of the basis for contemplated trial by court martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

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

7.  On 9 March 1979, the unit commander recommended approval of the applicant's request for discharge for the good of the service.  On 12 March 1979, the battalion commander disapproved the request for discharge for the good of the service stating that the Soldier "did not understand that he could receive an under other than honorable conditions discharge."

8.  On 12 March 1979, the division commander concurred with the battalion commander's recommendation.

9.  On 13 March 1979, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 16 March 1979, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 2 years, 4 months, and 10 days of creditable active service.

10.  On 15 October 1979, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge.

11.   In a self-authored statement provided to the ADRB, the applicant states:

* he was diagnosed with a hernia
* he could not perform 13B duties
* he wanted to be reclassified or discharged due to his inability to perform his job

12.  The ADRB board proceedings acknowledged the applicant did, in fact, have a hernia and it was identified early in his enlistment.  However, numerous physical profiles were issued and the applicant refused to have corrective surgery.  It further states his medical records reflect that he was scheduled for surgery several times but refused.  On 2 December 1980, the ADRB concluded that the discharge was inequitable considering the severity of the charges against him and his overall service record.  Therefore, his discharge was upgraded to general under honorable conditions.

13.  The applicant's personal statement states:

* his platoon sergeant was gay and wanted him as his sexual partner
* in lieu of this, he was harassed daily by his peers
* the leadership was aware; however, they protected the platoon sergeant
* he was injured while training with his platoon sergeant
* his requests for sick calls were denied
* he was threatened with punishment if he did not go to the field
* he was forced to request a discharge or go to jail
* he is currently working on attaining his master's degree

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 at any time after charges have been preferred.  At the time, an under other than honorable conditions discharge was normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, 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 otherwise so meritorious than any characterization would be clearly in appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  Although the applicant's discharge was previously upgraded to general under honorable conditions by the ADRB, the applicant's record of service shows a disciplinary history which includes his acceptance of Article 15, UCMJ, on three separate occasions.  Based on his record of indiscipline, the applicant's service clearly does not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.

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)                                         AR20100008419



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)