IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003956 


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 his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was given an unfavorable character of discharge after a civilian stated he assaulted a police officer.  The officer claimed he drove away while the officer was holding his door handle.  He was discharged without receiving an Article 15 or court-martial hearing.  He was a sergeant first class/E-7 at the time of the incident and he had served honorably for the period 24 April 1984 through 13 March 1990.  He is now being denied medical treatment from the Department of Veterans Affairs (VA) as a result of his discharge.

3.  The applicant provides no additional evidence.

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's record shows he enlisted in the Regular Army on 24 April 1984.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was staff sergeant/E-6.  However, he held the rank/grade of private (PVT)/E-1 at the time of his separation.

3.  On 25 August 1992, the applicant was notified of initiation of separation action for commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c.  The reasons for the proposed action were:

	a.  On or about 27 November 1991, a Soldier reported his wallet and credit card were stolen.  On that same day, it was reported that the applicant used the credit card to purchase automotive parts and forged the lawful owner's signature.  He also illegally used the same credit card to purchase fencing materials, a storm door, and a camcorder.

	b.  On or about 13 December 1991, a Soldier's credit card was stolen from his locker.  On that same day, the applicant used the credit card to purchase merchandise.

	c.  On or about 19 December 1991, a Soldier's wallet and credit card were stolen from a locker at the fitness center.  On that same day, an automotive supply store reported the applicant attempted to use the Soldier's credit card to purchase automotive parts.

	d.  On or about 20 December 1991, a store operator contacted police when the applicant attempted to use a stolen credit card.  A policeman ordered the applicant to stop as he left the store.  The applicant locked his car doors and left the parking lot while the policeman was holding on to the applicant's car door and was dragged.

4.  On 16 September 1992 after consultation with legal counsel, the applicant requested consideration of his case by an administrative separation board.

5.  On 25 September 1992, the separation action was referred to an administrative elimination board.

6.  On 6 October 1992, the applicant acknowledged the notification to appear before an administrative board to convene on 22 October 1992.

7.  On 20 October 1992, the applicant's attorney requested a delay to change the hearing from 22 October 1992 to no earlier than 23 November 1992.

8.  On 21 October 1992, the President of the Board concluded that the applicant had been properly notified within the requirements of Army Regulation 635-200, had ample time to prepare for the proceedings, and thereby denied the applicant's request to delay the hearing.

9.  An administrative discharge board convened on 22 October 1992 without the applicant's defense attorney.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 5 November 1992, shows the defense counsel for the applicant was not present for the board proceedings.  The evidence also shows he was offered representation by military trial counsel, but he declined.

10.  On 5 November 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed issuance of a discharge under other than honorable conditions, reduction to PVT/E-1, and no transfer to the Individual Ready Reserve.

11.  On 7 December 1992, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated for misconduct for commission of a serious offense.  He completed a total of 8 years, 7 months, and 14 days of creditable active military service.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, 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.  

14.  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's contention that his discharge should be upgraded was carefully considered and there is insufficient evidence to support his contention.

2.  The evidence shows the applicant was afforded an opportunity to have his case heard by an administrative separation board.  The evidence also shows the applicant consulted with legal counsel on 16 September 1992 and after being advised of the basis for the contemplated separation, its effects, and the rights available to him, he elected to have his case considered by an administrative separation board.

3.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an 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 veterans' 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 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)                                         AR20110003956



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ABCMR Record of Proceedings (cont)                                         AR20110003956



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