IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013049 


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 other than honorable conditions discharge.

2.  The applicant states he contracted hepatitis C while in basic training and he was hospitalized twice for 30 days.  He further contends he spent a year at the Fort Leavenworth military prison in Kansas and then was found not guilty by an appeals court.  Since his discharge he has endeavored to be a quality American citizen.  He has seven children, two of which are adopted.  He invented and patented two child safety devices and founded several companies and a children's foundation.  He has not been in trouble with the law since his discharge and teaches martial arts to the Military, Police, and FBI.  He published a book entitled "Women's Simple Self-Defense."  Finally, he states he was young in mind and body at 17 years old when he enlisted and now he is a grandfather who worked hard to help this country and to become a quality citizen for the United States while living with a debilitating chronic illness given to him for volunteering for military service.  He now is requesting an upgrade of his discharge status to allow him to get Department of Veterans Affairs (DVA) health care.

3.  The applicant provides a self-authored statement; Republic of the Philippines, Department of Education, Culture and Sports certificates of merit and appreciation; and a newspaper article entitled "Newly Patented Technology Prevents Identify Theft."


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.  On 24 June 1975, he enlisted in the Regular Army at the approximate age of 18 years and 8 months.  He completed his initial training and was awarded military occupational specialty (MOS) 91R (Food Inspector Assistant).  The highest rank/grade he held on active duty was private first class (PFC)/E-3.

3.  The records show the following:

	a.  Item 25 (Physician's Summary) of his Standard Form (SF) 93 (Report of Medical History), dated 8 February 1975, reported he had Hepatitis in 1970 due to eating raw oysters;

	b.  Item 73 (Notes) of his SF 88 (Report of Medical Examination), dated 
31 June 1978, indicates that his Hepatitis existed prior to service;

	c.  On 2 November 1976, he was notified of pending court-martial charges for the distribution of cocaine;

	d.  Headquarters, III Corps, Fort Hood, TX, General Court-Martial Order Number 5, dated 28 February 1977, indicates he was arraigned, tried, and pled guilty on 22 November 1976 to two specifications of unlawfully, knowingly, and intentionally, distributing cocaine, in violation of Article 134 of the Uniform Code of Military Justice (UCMJ).  He was found guilty of all charges and specifications;

	e.  He was sentenced to be dishonorably discharged from the Army, confined at hard labor for three years, to forfeit of all pay and allowances, and to be reduced to the pay grade of E-1; and


	f.  Headquarters, III Corps, Fort Hood, General Court-Martial Order Number 3, dated 20 January 1978, set aside, effective 19 December 1977, the findings of guilty and the sentence as promulgated in General Court-Martial Order
Number 5, and authorized a rehearing on the findings and sentence.

4.  On 27 January 1978, he submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  Further, he request no further processing of his court-martial charges until the General Court-Martial Convening Authority had considered and taken action on his request for discharge under the provisions of Army Regulation 635-200, chapter 10.

5.  The "Corrected Copy" of Headquarters, III Corps, Fort Hood, General Court-Martial Order Number 5, dated 3 February 1978, determined a rehearing was no longer practicable and all charges were dismissed in view of the fact the applicant was requesting discharge for the good of the service pursuant to the provisions of Army Regulation 635-200, chapter 10.  Further, he would be discharged at the earliest possible date with an under other than honorable conditions discharge.

6.  On 3 February 1978, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 23 February 1978, he was discharged accordingly.  He completed 2 years and 8 months of total active service.

8.  On 14 June 1983, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  Under the UCMJ, the maximum punishment allowed for unlawfully, knowingly, and intentionally distributing cocaine is a dishonorable discharge and confinement for 15 years.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

11.  Army Regulation 635-200, paragraph 3-7b, 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 contends he was young in both mind and body when he enlisted; however, the evidence of record shows he was 20 years of age at the time he committed his offenses.  There is no evidence that indicates he was any less mature than other soldiers of the same age who successfully completed military service.

3.  He contends he contracted hepatitis on active duty and now suffers from a fatal liver disease; however, his medical records clearly show this medical condition existed prior to his entry into the Army as self-reported during his medical entrance examination.

4.  Based on the seriousness of his offense, his service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The records show his voluntary separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  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.

7.  In view of the foregoing, his request should be denied.

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)                                         AR20100013049



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ABCMR Record of Proceedings (cont)                                         AR20100013049



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