IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022290 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge.  He also requests, in effect, correction of a Department of Veterans Affairs (VA) computer system to include both of his DD Forms 214 (Certificate of Release or Discharge from Active Duty).

2.  He states, in effect, he wants his discharge upgraded so he may receive medical care at VA hospitals.

3.  He provides a VA Form 26-1880 (Request for a Certificate of Eligibility) and copies of his DD Forms 214.

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 ABCMR has no jurisdiction over VA records or computer systems.  The applicant must contact the VA regarding any records missing from that agency's computer systems.  This Record of Proceedings will not further address this portion of his request.  

3.  He enlisted in the Regular Army on 9 August 1977.  He was honorably discharged on 19 August 1979 to immediately reenlist.  He reenlisted on 20 August 1979.  

4.  On 14 November 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command from a superior commissioned officer to provide a urine sample.  His punishment was 45 days of restriction, 45 days of extra duty, reduction to private first class/E-3 (suspended for 180 days), and forfeiture of $285 per month for 2 months.

5.  On 13 December 1979, he was counseled for reporting late for extra duty on 8 December 1979 and refusing to perform extra duty on 12 December 1979.  His first sergeant provided the counseling and informed him he intended to recommend that he be barred from reenlistment.

6.  On 15 January 1980, he was counseled for failing to return to his place of duty after being allowed to leave take care of personal business.

7.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 17 January 1980, shows his commander recommended he be barred from reenlistment on the basis of the NJP he received on 14 November 1979.  The bar to reenlistment was approved on 23 January 1980.

8.  On 9 April 1980, his commander was informed that court-martial charges had been preferred against the applicant.  

9.  The record includes documents pertaining to an investigation conducted under the provisions of Article 32b of the UCMJ.  These documents show he was charged with housebreaking and indecent assault on a child under the age of 16.  

10.  Court-Martial Convening Order Number 155, issued by Headquarters, 3d Armored Division, on 23 June 1980, indicates court-martial proceedings were initiated against the applicant.

11.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a DD Form 214.  The form shows, on 27 October 1980, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, and his service was characterized as UOTHC.  

12.  On 24 January 1982, the Office of the Adjutant General informed him the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.

13.  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 discharge (HD) or general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.

	a.  Paragraph 3-7a provides that an HD 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.

	b.  Paragraph 3-7b provides that a general discharge (GD) 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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits.
3.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations.  There is no evidence which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process.

4.  The available documentation shows he received NJP for disobeying a lawful command and was counseled twice for his poor duty performance.  Further, by requesting discharge for the good of the service in lieu of trial by court-martial, he admitted guilt to one or more of the court-martial charges against him.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.  

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)                                         AR20100022290





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ABCMR Record of Proceedings (cont)                                         AR20100022290



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