BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016805 


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 (UOTHC) discharge.

2.  The applicant states he wants his UOTHC discharge upgraded in order to pursue benefits from the Department of Veterans Affairs (VA) and employment opportunities.

3.  He provided two personal reference letters 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's record shows he enlisted in the Regular Army on 21 October 1982.
3.  On 27 November 1985, after consulting with counsel and being advised of the basis for the contemplated separation action, its effects, and the rights available to him, the applicant waived his right to consideration of his case by a board of officers and to a personal appearance before a board of officers.  He also acknowledged he understood that he may encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he acknowledged he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  

4.  In his request for discharge, he acknowledged he understood by requesting a discharge he was admitting guilt to the following charges against him that also authorized the imposition of a bad conduct or dishonorable discharge:

* larceny of government property in violation of Article 121 of the Uniform Code of Military Justice (UCMJ)
* receiving stolen property in violation of Article 134, UCMJ

5.  He further acknowledged he understood that if his 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 10 December 1985, his company commander recommended approval with a UOTHC discharge.  On 11 and 12 December 1985, his battalion and brigade commanders, respectively, recommended approval with a UOTHC discharge.

7.  On 17 December 1985, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with the issuance of a UOTHC Discharge Certificate.  On 23 December 1985, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 3 years, 
2 months, and 3 days of total active service.  

8.  On 26 December 1989, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

9.  He provided two letters of reference which state he is a kind and trustworthy person who gets the job done.  

10.  Army Regulation 635-200 (Personnel Separations) 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 UOTHC discharge is normally considered appropriate.

11.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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 voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

2.  The ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

3.  Additionally, the granting of VA benefits is not within the purview of the ABCMR; therefore, questions regarding eligibility for VA benefits should be addressed to the VA.
4.  The applicant's post-service conduct is acknowledged; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.  

5.  The available evidence is insufficient for granting the applicant's request.

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)                                         AR20100016805



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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