IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100018307 


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 his 19 January 1988 discharge under other than honorable conditions.

2.  He states he believes the type of discharge he received was unjust.  He started complaining about his medical problems in 1986 and continued to voice his concerns up until his discharge.  His chain of command and administration were well aware that the medical doctor diagnosed him with irregular areas and lumps in his rectum.  He received a referral from his doctor to have a scope done as soon as possible, but his command sent him to the demilitarized zone instead.

3.  He contends he was so sick at times that he was often unable to move.  However, his unit did not acknowledge his complaints.  He has suffered for many years with rectal problems and discovered he had rectal cancer for which he is unable to receive compensation because the Department of Veterans Affairs (VA) stated his service time was not honorable.

4.  He provided copies of:

* an excerpt from his military medical record
* page 2 from his voluntary discharge request
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 January 1988
* an administrative decision from the VA Regional Office, Montgomery, AL, dated 22 October 1990
* page 2 of a rating decision from the VA Regional Office, Montgomery, AL, dated 19 February 1999

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.  His records show he enlisted in the Regular Army on 8 August 1973 for 3 years.  After the completion of basic combat and advanced individual training, he was awarded military occupational specialty 75B (Personnel Administration Specialist).

3.  His record contains a copy of a DD Form 214 for the period ending 12 May 1976.  This document shows he was honorably discharged for the purpose of reenlistment.  He completed 2 years, 9 months, and 5 days of active service.

4.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 13 May 1976, shows he reenlisted for 6 additional years in the grade of specialist/E-4.

5.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 November 1976.  This form shows he was administered nonjudicial punishment (NJP) for writing checks with insufficient funds.

6.  General Court-Martial Order Number 4, Headquarters, U.S. Army Training Center and Fort Jackson, SC, dated 3 April 1980, shows he was tried for 10 specifications of violating Article 134 of the UCMJ.  The specifications and findings show:

* specification 1 – wrongfully and unlawfully destroying U.S. Mail (dismissed by military judge)
* specifications 2, 3, 4, 5, and 6 – wrongfully and unlawfully taking U.S. Mail belonging to other Soldiers (guilty)
* specifications 7, 8, 9, and 10 – wrongfully and unlawfully stealing U.S. Mail belonging to other Soldiers (dismissed by military judge on motion by trial counsel)

7.  He provided a copy of a Standard Form 88 (Report of Medical Examination), dated 21 August 1986.  This report showed that upon examination, he was found to have changes in his bowel movements, blood in his stool, constipation, diarrhea, and large quantities of gas.  The digital rectal examination showed irregularities and some lumps.  He was found qualified for separation.

8.  His military medical records are not available for review and are believed to be on permanent loan to the VA Medical Center.

9.  His record is void of a copy of his request for voluntary discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  However, he did provide a copy of page 2 of his request.

10.  Page 2 of his request for discharge shows he consulted with counsel and stated he understood if his request were accepted, he could be discharged under conditions other than honorable.  He was advised of and understood the effects of an under other than honorable discharge (including but not limited to reduction to the lowest enlisted grade (E-1) by operation of law) and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

11.  He was also advised that he could submit a statement in his own behalf which would accompany his request for discharge.  This form does not indicate his choice.

12.  He provided a copy of a Standard Form 502 (Chronological Record of Medical Care), dated 28 December 1987.  This document shows he was diagnosed with rectal cancer.  It also notes that he was due to be discharged from the Army and asked if he should be placed on medical hold.  No other comments were recorded.

13.  His record contains a memorandum from the Office of the Adjutant General, Headquarters, 7th Infantry Division (Light) and Fort Ord, dated 6 January 1988.  This memorandum shows he was ordered not to reenter or to be found within the limits of the Fort Ord Base Complex at any time.  His actions resulted in a discharge under the provisions of chapter 10, Army Regulation 635-200, for commission of serious offenses, which included unauthorized absences from duty, disobedience, insubordination, false official statement, cocaine use, and failure to pay debt.

14.  On 19 January 1988, he was separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge in the grade of private/E-1.  He completed 14 years, 5 months, and 12 days of active service.

15.  A Department of the Army (DA)-imposed bar to reenlistment under the Qualitative Management Program was issued to him on 17 February 1988.  This document shows that the DA Calendar Year 1987 Sergeant First Class/
Advanced Noncommissioned Officer Course Selection Board convened on 14 October 1987 and identified two enlisted evaluation reports, a court-martial order, and a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) as the basis for issuing him the bar to reenlistment.

16.  There is no evidence in the available record to show he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  He provided a copy of a VA administrative decision, dated 22 October 1990.  The VA rendered a decision that stated his period of service from 6 February 1987 to 19 January 1988 was considered dishonorable and was a bar to VA benefits.

18.  He also provided a copy of page 2 of a VA rating decision, dated 19 February 1999.  This document showed:

* service connection was established for hemorrhoids rated at 0 percent
* service connection was denied for cancer of the rectum
* service connection was established for a surgical scar on his right leg rated at 10 percent
* entitlement to individual unemployability was denied due to non-service connected factors

19.  Army Regulation 635-200 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

20.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

21.  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.  

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his 19 January 1988 discharge under other than honorable conditions was carefully considered; however, it is not supported by the evidence of record.

2.  He has not submitted sufficient evidence or a convincing argument to prove his chain of command was unfair in their decision to prefer court-martial charges.  The evidence shows he had previously accepted NJP under the UCMJ and had been convicted by a general court-martial of five specifications under the UCMJ.

3.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  His chain of command supported his request and he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial accordingly.

4.  In connection with such a discharge, he was charged with the commission of an offense or offenses punishable under the UCMJ with a punitive discharge.  Procedurally, he was 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, he admitted guilt to the stipulated offenses under the UCMJ.

5.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  The reason for his discharge and the characterization of service were both proper and equitable.

6.  He contends he cannot receive compensation from the VA because the last period of his service was not considered honorable.  The character of service is not changed for the purpose of enabling former service members to obtain eligibility for benefits.  

7.  In view of the foregoing, there is no basis to grant the 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 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)                                         AR20100018307



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ABCMR Record of Proceedings (cont)                                         AR20100018307



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