IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028348 


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 discharge.

2.  The applicant states he is requesting an upgrade of his discharge to be eligible for Department of Veterans Affairs (VA) benefits.  He adds that he feels his blood pressure and loss of hearing impacted his ability to perform.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); two letters of support; and certificates for completion of the Drug and Alcohol Safety Education, Arkansas Department of Corrections Pre-Release Program, Anger Management course, and Thinking Errors course.  He also provided three diplomas, a certificate of achievement, a baptism certificate, and several Arkansas Department of Human Services documents. 

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 military records show he enlisted in the Regular Army on 17 September 1974.  He completed initial entry training and was awarded the military occupational specialty of field artillery crewman.  The highest rank/grade he attained was specialist/E-4.

3.  He accepted nonjudicial punishment (NJP) on four separate occasions from March 1975 to April 1976 for absenting himself from his place of duty without authority.

4.  Headquarters, VII Corps, Special Court-Martial Order Number 30, dated 19 July 1976, shows he was convicted of assaulting another Soldier by striking him on the side of the head with the heel of a shoe, a means likely to produce grievous bodily harm.

5.  He accepted NJP on three additional occasions in January and February 1977 for failing to go at the time prescribed to his appointed place of duty (twice) and for behaving with disrespect towards a commissioned officer.

6.  On 30 March 1977, he was charged with disobeying a lawful command from a commissioned officer (twice), behaving with disrespect towards a commissioned officer, and with being disrespectful in language towards a noncommissioned officer.

7.  On 4 April 1977, he consulted with counsel and voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged he was making the request of his own free will and had not been subjected to coercion with respect to his request for discharge.  He acknowledged he had been advised of the implications that were attached to his request.  He acknowledged that he was guilty of the charge(s) against him or of a lesser included offense(s) which also authorized the imposition of a bad-conduct or dishonorable discharge.  He acknowledged he understood if his discharge request was approved he may be discharged under other than honorable conditions.  He acknowledged he had been advised and understood the possible effect of an under other than honorable conditions discharge, 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 acknowledged he understood he may expect to encounter substantial prejudice in civilian life if he received an under other than honorable conditions discharge.
8.  On 20 April 1977, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be given a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).

9.  On 25 April 1977, he was discharged accordingly.  The DD Form 214 he was issued shows he completed a total of 2 years, 2 months, and 19 days of active military service with 143 days of lost time.

10.  On 19 April 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.  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.

12.  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.

13.  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 discharge with a characterization of service 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's records show he received seven NJP's, one special court-martial conviction, and he had 143 days of lost time.

2.  He voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of a trial by court-martial.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  While he provided letters of support and documents indicating he is trying to turn his life in a better direction these actions are not sufficient to upgrade a properly-issued discharge. 

4.  The ABCMR does not upgrade 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.

5.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20100028348



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ABCMR Record of Proceedings (cont)                                         AR20100028348



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