IN THE CASE OF:	  

		BOARD DATE:	    5 April 2011

		DOCKET NUMBER:  AR20100023598 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states he was a good Soldier until he was sent to Alaska.  He had money so he started going to bars.  He ended up being absent without leave (AWOL) and staying with girls.  He didn't know his discharge would affect his entitlement to Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his 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 for a period of 4 years on 15 March 1983.  Upon completion of training he was awarded military occupational specialty 11B (Infantryman).

3.  The applicant was assigned to Alaska on 3 November 1983.

4.  On 16 October 1984, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for an unknown offense with punishment consisting of reduction to private (E-1) and 45 days of restriction (suspended for an unknown period of time).  On 23 November 1984, the applicant failed to go at the time prescribed to his appointed place of duty and the suspension of the punishment imposed on 16 October 1984 was vacated.

5.  The applicant was tried by a special court-martial in March 1985.  He was found guilty of larceny of $75.00 in U.S. currency on 27 December 1984.

	a.  On 30 March 1985, he was sentenced to forfeiture of $200.00 pay per month for 6 months and confinement for 3 months.

	b.  On 9 May 1985, the convening authority approved the sentence and ordered it executed.  The applicant was confined from 2 April to 14 June 1985.

6.  The applicant received NJP under Article 15, UCMJ, as follows:

	a.  on 20 November 1985, for being AWOL from 12 to 17 July 1985, 3 to 4 August 1985, and 15 August to 29 September 1985.  His punishment consisted of forfeiture of $310.00 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction (suspended until 20 May 1986);

	b.  on 6 February 1986, for being AWOL from 24 to 29 January 1986, when he was apprehended.  His punishment consisted of forfeiture of $250.00 pay per month for 2 months (the portion in excess of $250.00 pay was suspended until 6 May 1986), 45 days of extra duty, and 45 days of restriction.  On 7 February 1986, the applicant broke restriction and the suspension of the portion of the punishment imposed on 6 February 1986 was vacated; and

	c.  on 21 March 1986, for wrongfully using marijuana on or about 23 January 1986.  His punishment consisted of forfeiture of $319.00 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction.

7.  The applicant's DA Form 2-1 (Personnel Qualification Record), item 21 (Time Lost), shows he was AWOL from 24 through 29 January 1986.

8.  On 25 March 1986, the applicant's commander notified the applicant he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct based on commission of a serious offense.  The reason for the proposed action was that the applicant had been given several chances to succeed and fulfill his military obligation.  However, he was AWOL once again on 24 January 1986 for no apparent reason.  The applicant was advised of his rights and of the separation procedures involved.

9.  On 25 March 1986, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

	a.  He was advised he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He was also advised that as the result of issuance of a discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  The applicant elected not to submit statements in his own behalf.

	c.  The applicant placed his signature on the document.

10.  The immediate and intermediate commanders recommended approval of the applicant's separation.

11.  On 21 April 1986, the separation authority approved the separation action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, based on commission of a serious offense and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

12.  The applicant's DD Form 214 shows he was discharged on 29 April 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense – with service characterized as under other than honorable conditions.

	a.  He completed 2 years, 9 months, and 6 days of net active service.

	b.  Item 29 (Dates of Time Lost During this Period) shows he had lost time from 2 April through 13 June 1985, 12 through 15 July 1985, 2 through 3 August 1985, 15 August through 14 September 1985, 15 through 29 September 1985, and 24 through 29 January 1986.

13.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for correction of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	b.  Chapter 3, 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 contends his discharge under other than honorable conditions should be upgraded to a general discharge because he was a good Soldier until he was sent to Alaska and he was unaware that his discharge would affect his entitlement to VA benefits.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

3.  Records show the applicant acknowledged he was advised by consulting counsel that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  Thus, the evidence of record refutes the applicant's contention that he was not aware his discharge would affect his entitlement to VA benefits.

4.  Records show the applicant was convicted of larceny at a special court-martial, he received NJP on four occasions for various offenses, and he accrued a total of 131 days of lost time during the period of service under review.  It is clear the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to a general discharge under honorable conditions.

5.  In view of all of the foregoing, there is no basis for granting the requested relief.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans'/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 veterans' benefits is not within the purview of the ABCMR.  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 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)                                         AR20100023598



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ABCMR Record of Proceedings (cont)                                         AR20100023598



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