IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110011974 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  He states:

	a.  the conditions at the time of his discharge were not consistent with the enlistment agreement at the Minneapolis, MN Armed Forces Examining and Entrance Station (AFEES).

	b.  he was not provided communications training or only stateside service as he was promised.

	c.  he was a chef prior to his enlistment.  He completed training as a cook in military occupational specialty (MOS) 94B (Food Service Specialist) at Fort Lee, VA, then he was assigned to a unit at Fort Lewis, WA as a cook.  He later learned the unit was moving to Germany.

	d.  he was set up on bogus charges to include failing to obey orders from a Judge Advocate General (JAG) officer.

3.  He provides a letter from the Veterans Administration (VA) Center, St. Paul, MN, dated July 20, 1977.


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 (RA) on 22 November 1976 for a period of 3 years.  His enlistment contract shows he enlisted in pay grade E-1 for training in MOS 94B.  His service record is void of evidence that indicates he enlisted for training in communications or that he was promised he would only serve in the continental United States.  He completed basic combat training at Fort Jackson, SC and he was reassigned to Fort Lee, VA for advanced individual training (AIT).  Upon completion of the AIT, he was awarded MOS 94B.  He had a permanent change of station to Fort Lewis, WA as a Food Service Specialist.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on two separate occasions for the following offenses:

* on 7 December 1976 for acting disrespectfully towards superior noncommissioned officer (NCO) on 6 December 1976
* 11 May 1977 for wrongfully possessing marijuana on 6 May 1977 and for failing to obey a lawful order issued by a lieutenant colonel on 6 May 1977

4.  On 12 May 1977, charges were preferred against the applicant for willfully disobeying a lawful order from two superior NCOs on 11 May 1977.

5.  On 16 May 1977, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  In doing so, he admitted guilt to the offenses charged and acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if an under other than honorable conditions discharge was issued.  He submitted statements in his own behalf.


6.  He stated his reasons for his request for a chapter 10 discharge was:

* he had many problems since he entered the Army
* his recruiter told him he would enter the Army as an E-3, but he was still an E-1
* he has been unable to adjust to the harassment of being an E-1
* for the good of the Army and for his own personal reasons

7.  On 24 May 1977, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 10 June 1977, he was discharged accordingly.  He completed 6 months and 19 days of creditable active service.

9.  He provided a letter from an adjudication officer at the VA Center, St. Paul, MN, dated 20 July 1977, in response to his request for unemployment benefits based upon military service.  He was advised that entitlement to such benefits was contingent upon discharge from military service under conditions other than dishonorable.  He stated the service which would qualify him for benefits was terminated by an under other than honorable conditions discharge.  He further stated a determination would be made on his eligibility for benefits and that he had the right to a personal hearing prior to their determination for unemployment and other veterans benefits.  The applicant did not provide any further correspondence or determination by the VA Center.

10.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 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, an under other than honorable conditions discharge is normally considered appropriate.


	b.  Paragraph 3-7b states 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 evidence of record does not support the applicant's contentions that the conditions at the time of his discharge were not consistent with his enlistment agreement at the Minneapolis AFEES.

2.  His enlistment contract shows he enlisted in the RA for training in MOS 94B.  Although he contends he was not provided communications training, his enlistment contract does not indicate he enlisted for training in communications.

3.  His contention that he was promised only stateside service is acknowledged; however, there is no evidence of record and the applicant did not provide any evidence of such a promise.  He indicates his unit was alerted for a move to Germany; however, his service record shows he was last assigned to Fort Lewis where he remained until he was voluntarily discharged on 10 June 1977 after completing only 6 months and 19 days of creditable active service.

4.  His service record shows he received two Article 15s and he was charged with willfully disobeying a lawful order from two superior NCOs on two separate occasions.  His service record is void of evidence which support his contention that he was set up.

5.  The ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for unemployment or other veterans benefits.   Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request 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)                                         AR20110011974



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ABCMR Record of Proceedings (cont)                                         AR20110011974



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