IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110019023 


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 discharge.

2.  The applicant states he was only involved in one incident while in the military and he believes that he should have been given at least one chance.  The applicant also adds that he was incarcerated, he has drug problems, and he needs help. 

3.  The applicant did not provide any documents in support of his application.

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, and 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.  On 11 August 1983, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  On 28 February 1984, the applicant was apprehended by military authorities for taking and cashing two checks that belonged to a fellow enlisted Soldier.  He was advised of his legal rights.  The applicant waived his rights and did not submit a written statement.

4.  On 2 April 1984, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  The unit commander also determined that a discharge for unsuitability was not deemed appropriate because the Soldier’s behavior was not due to an inability to satisfactorily perform within the meaning of suitability.  The commander cited the bases for recommendation was the offense the applicant committed, on or about 6 January 1984, when the applicant and another Soldier stole traveler’s checks in the amount of $240.00 which the applicant cashed in the amount of $40.00.  The commander added that in his judgment the applicant’s poor attitude caused a very severe morale problem in both the shop in which he worked and in the company area.  The commander believed that the best thing for both the unit and the Army was to separate the applicant as soon as possible.

5.  On the same day, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects and of the rights available to him.  He waived his right to an administrative separation board, even in the event that an under other than honorable conditions discharge was recommended.  The applicant also acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a less than an honorable discharge was issued to him.  The applicant elected not to submit a statement in his own behalf.

6.  On 17 May 1984, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14-12c, for commission of a serious offense and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 28 May 1984, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Army Regulation 
635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. He completed 9 months and 19 day of creditable active service.

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

8.  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.  

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's contentions were carefully considered and found to be insufficient in merit.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility 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.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.  Good post-service citizenship, while commendable, does not form a sole basis for an upgrade.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.

3.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting a general or an honorable discharge.  He stole from his fellow Soldiers.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20110019023



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ABCMR Record of Proceedings (cont)                                         AR20110019023



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