IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100010818 


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 discharge under other than honorable conditions be upgraded to a general discharge (GD).

2.  The applicant states he needs to have his discharge upgraded to receive medical treatment from the Department of Veterans Affairs (VA).  He knows his life has been less than savory and he has battled drug addiction and incarceration.  He is currently in a drug treatment program and is addressing his problems of homelessness and addiction.  

3.  The applicant provides no supporting documentation.

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 on 28 January 1983, completed training, and was awarded the military occupational specialty 76Y (Unit Supply Specialist).  

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

* on 7 September 1983, for failure to go to his appointed place of duty
* on 5 October 1983, for failure to obey a lawful order
* on 20 December 1983, for sleeping on sentinel duty

4.  On 3 November 1983, his unit commander recommended the applicant be court-martialed for theft of government property and making a false official statement. 

5.  On 21 December 1983, the applicant went absent without leave (AWOL) and never returned to military control.

6.  On 26 January 1984, while in an AWOL status, he was arrested by civilian authorities for unauthorized use of a motor vehicle.  

7.  On 23 March 1984, the District Court of Bell County, Texas found the applicant guilty of the above charge and sentenced him to civilian confinement for 2 years.

8.  On 13 August 1984, his command initiated discharge proceedings under the provisions of Army Regulation 635-200, chapter 14, for his civilian conviction.

9.  On 8 November 1984, the applicant acknowledged his command's intent to discharge him.  At this time he waived all of his rights.  

10.  On 12 December 1984, the discharge authority approved the applicant's discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

11.  The applicant was discharged on 2 January 1985 under Army Regulation 635-200, chapter 14, for misconduct, civilian conviction.  He had 10 months and 23 days of creditable active service with 379 days of lost time.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following at:

	a.  Chapter 3, in effect at that time, outlines the criteria for characterization of service as follows:

		(1)  paragraph 3-7a provides that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty; and

		(2)  paragraph 3-7b provides that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD; and 

	b.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a GD under honorable conditions or an HD may be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he needs to have his discharge upgraded to receive medical treatment from the VA.  He is currently in a drug treatment program and he is addressing his problems of homelessness and addiction.  

2.  The applicant was discharged on 2 January 1985 under Army Regulation
635-200, chapter 14, for misconduct due to a civilian conviction.  He had 
10 months and 23 days of creditable active service with 379 days of lost time.

3.  While the applicant's taking positive actions to overcome his addiction is applauded, this effort is not sufficiently meritorious to outweigh the offenses that led to his discharge.  

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The ABCMR does not upgrade discharges solely for the purpose of securing VA 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)                                         AR20100010818



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010818



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1