IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029607 


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 (UOTHC) discharge to an honorable discharge.

2.  The applicant states he had major surgery on the spinal area of his back.  While he is currently incarcerated, he is supposed to get out soon and he will need some type of financial and medical assistance from the Government when he is released.

3.  The applicant adds that he was never charged with any offense other than hanging out with the wrong person.  He was young and really didn't understand what was taking place.  When court-martial charges were preferred against him, he was told by legal counsel that if he didn't request discharge he could go to Leavenworth (prison) for a long time.

4.  The applicant does not provide any additional 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.  The applicant enlisted in the Regular Army on 12 July 1976.  He was awarded military occupational specialty 11B (infantryman).

3.  Between 25 January 1977 and 22 June 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on six occasions for:

* Failing to go at the time prescribed to his appointed place of duty (seven specifications)
* Selling to a pawn shop a sleeping bag and rucksack, military property of the United States

4.  On 21 July 1978, the applicant was convicted by a summary court-martial of breaking restriction.

5.  On 8 September 1978, court-martial charges were preferred against the applicant for stealing a Panasonic stereo, of a value of $500.00, the property of another enlisted Soldier.

6.  On 13 September 1978, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In that request he admitted guilt to the offense he was charged with or of a lesser included offense which also authorized a punitive discharge, and he acknowledged that he understood that he could receive a UOTHC discharge which may make him ineligible for many or all benefits administered by the Veterans Administration (VA).

7.  On 22 September 1978, the appropriate authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, with a UOTHC Discharge Certificate and reduction to private (PV1)/E-1.  Accordingly, on 29 September 1978, the applicant was discharged.

8.  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 UOTHC discharge is normally considered appropriate.

9.  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.

10.  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.  The applicant accepted NJP on six occasions, he was convicted by a summary court-martial, and he had charges preferred against him for stealing from a fellow Soldier.  Such repeated, serious misconduct certainly warranted a UOTHC discharge.

2.  The applicant's repeated incidents of misconduct leaves no doubt that he was aware that his actions were not acceptable and would not be tolerated.  It is unimaginable that he would think that stealing from a fellow Soldier was acceptable behavior.  As such, his contentions that he was simply hanging out with the wrong person and he was young and really didn't understand what was really taking place are not accepted.

3.  Since court-martial charges had been preferred against him, legal counsel would have advised him on his options and what could occur if he was court-martialed.  Confinement is one of the sentences that can be adjudged by a court-martial for certain offenses.  As such, it would appear that legal counsel properly advised the applicant.

4.  While the applicant's current situation is certainly unfortunate, 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 DVA.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20100029607



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ABCMR Record of Proceedings (cont)                                         AR20100029607



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