IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100013370 


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 an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states he would like to have his discharge upgraded so he can be treated at the Department of Veterans Affairs (VA) hospital. 

3.  The applicant provides no additional documentary evidence in support of this application. 

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 14 September 1982.  He completed initial entry training and he was awarded military occupational specialty 26L (tactical microwave systems repairer).  The highest rank/grade he held was specialist four (SP4)/E-4.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions during the period 8 August to 21 November 1984 for failing to go at the time prescribed to his appointed place of duty.  His records also contain numerous counseling statements regarding poor performance.

4.  The applicant's discharge packet is not contained in his records.  However, the applicant’s record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows on 7 February 1985 he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with issuance of an under other than honorable conditions discharge.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the VA; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  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.

7.  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's records show he accepted NJP on three occasions for failing to go at the time prescribed to his appointed place of duty and that he was counseled on numerous occasions for poor performance.  In order to be discharged under chapter 10 he would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  An under other than honorable conditions discharge is normally considered appropriate for Soldiers separated for the good of the service.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  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.

5.  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)                                         AR20100013370



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ABCMR Record of Proceedings (cont)                                         AR20100013370



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