IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004428 


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 discharge to honorable.

2.  The applicant states:

* He received a dishonorable discharge
* He only had 54 days left of service
* He was informed by the discharging officer that his discharge status would be upgraded in one year
* He recently learned his discharge was not upgraded after attempting to apply for Department of Veterans Affairs (DVA) benefits 

3.  The applicant provides no documentary 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.  He enlisted in the Army National Guard on 1 April 1974 for a period of 
6 years.  He served as an infantryman.  He was honorably discharged from the Army National Guard on 26 September 1979 and ordered to active duty on 
27 September 1979 for a period of 17 months and 28 days.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 
11 October 1979 for being absent without leave (AWOL).

4.  On 9 June 1980, he was convicted by a special court-martial of being AWOL from 21 March 1980 to 10 April 1980, possessing marijuana, distributing marijuana, and conspiring to sell marijuana.  He was sentenced to perform hard labor without confinement for 3 months, to forfeit $75.00 pay per month for 6 months, to be restricted to the limits of his battalion for 2 months, and to be reduced to E-1.  On 2 July 1980, the convening authority approved only so much of the sentence as provided for hard labor without confinement for 2 months, to forfeit $75.00 pay per month for 6 months, to be restricted to the limits of Fort Campbell, KY for 1 month, and to be reduced to E-1.    

5.  NJP was imposed against the applicant on:

* 11 February 1981 for being AWOL (two specifications)
* 6 May 1981 for being AWOL

6.  On 13 June 1981, he went AWOL.  He was apprehended by civil authorities and returned to military control on 28 August 1981.  Charges were preferred against the applicant for the AWOL period on 16 September 1981.

7.  On 16 September 1981, he consulted with counsel and requested 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 his request he stated "I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person."  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA), he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated he went AWOL due to financial problems.

8.  The intermediate commanders recommended the applicant be discharged with a general discharge. 

9.  On 9 October 1981, the separation authority approved the applicant's request for discharge and directed he be given a general discharge.

10.  His DD Form 214 shows on 26 October 1981 he was discharged under other than honorable conditions.  Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "UNDER OTHER THAN HONORABLE CONDITIONS."  He completed 1 year, 5 months, and 24 days of creditable active service with 204 days of lost time.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's its 15-year statute of limitations.

12.  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 discharge under other than honorable conditions is normally considered appropriate.

13.  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.

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.



15.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support his contention he received a dishonorable discharge.  Although his DD Form 214 shows his character of service as under other than honorable conditions, the separation authority directed he be issued a general discharge.  Therefore, it would be appropriate to correct item 24 of his DD Form 214 to show his character of service as under honorable conditions (general).  

2.  He contends he was informed his discharge would be upgraded in one year.  However, a discharge upgrade is not automatic.

3.  A discharge is not changed for the purpose of obtaining DVA benefits.

4.  His record of service included 3 NJPs, one special court-martial, and 204 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

5.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry in item 24 of his DD Form 214 and replacing it with the entry "UNDER HONORABLE CONDITIONS (GENERAL)."  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his general discharge to honorable.  




      _______ _   _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)                                         AR20110004428





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ABCMR Record of Proceedings (cont)                                         AR20110004428



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