IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022166 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* Prior to being discharged he was hospitalized at Fort Bliss, TX due to an injury he suffered
* He was inpatient for 7 days, outpatient for 2 weeks, and then transferred to Cannon Air Force Base, NM for therapy and subsequently discharged
* He does not know why his character of service was under other than honorable conditions
* He wants to access the health care services at the Department of Veterans Affairs (VA)
* His injury he incurred while on active duty is deteriorating to the point he needs medical attention 

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) for the period ending 11 December 1976
* a Letter of Commendation
* his General Discharge Certificate from the Army National Guard
* two Certificates of Training


* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 March 1980

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 Army National Guard on 14 February 1976 for a period of 6 years.  He trained as a light air defense artillery crewman.

3.  A DD Form 689 (Individual Sick Slip), dated 9 October 1978, states he injured his left eye at Fort Bliss on 7 October 1978 during IDT (inactive duty training) firing.  This form also states "To return to Hospital at Cannon Air Force Base, Clovis, NM if necessary."  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 October 1978, states, in pertinent part, when his weapon fired the powder blast struck him causing a powder burn to his left eye, that he sustained a scratch to the corner of his left eye, and that he was treated by the medic and taken to the hospital and released.

4.  He was discharged from the Army National Guard on 1 July 1979 with a general discharge and involuntarily ordered to active duty on 2 July 1979 for a period of 18 months and 16 days due to unsatisfactory participation.

5.  He failed to report as ordered on 2 July 1979 and his duty status was changed to absent without leave (AWOL).  He reported for active duty on 15 August 1979 and went AWOL on 25 August 1979.  He returned to military control on
24 September 1979.  On 24 September 1979, charges were preferred against him for his AWOL offense.

6.  On 8 February 1980, the applicant consulted with counsel and he requested discharge under the provisions of Army Regulation 635-200 (Personnel 


Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the VA, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

7.  On 6 March 1980, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  He was discharged accordingly on 12 March 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 6 months and 23 days of creditable active service with 207 days of time lost.

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

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 3-7a, 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.  His contention that prior to being discharged he was hospitalized at Fort Bliss for an [eye] injury was noted.  However, medical evidence shows he injured his left eye on 7 October 1978, he was treated for the scratch in the corner of his left eye, and he was released.  He was discharged in March 1980, 17 months later.

2.  His contention he does not know why his character of service was under other than honorable conditions was noted.  However, evidence shows he consulted with counsel on 8 February 1980 and he indicated in his voluntary request for discharge that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge and that he might be ineligible for many or all benefits administered by the VA.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  His brief record of service on active duty included 207 days of time lost.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

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.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20100022166



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ABCMR Record of Proceedings (cont)                                         AR20100022166



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