IN THE CASE OF:	  

		BOARD DATE:	 31 July 2012 

		DOCKET NUMBER:  AR20120001068 


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 discharge.

2.  The applicant states he has two honorable discharges from the periods 1977 to 1980 and 1980 to 1985.

	a.  He states he received his under other than honorable conditions discharge after a 1-year extension of service for the convenience of the government.

	b.  He adds that he served his country and asks that his country now serve him with health care and other benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Department of Veterans Affairs (VA) Health Care fact sheet.

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 28 June 1977.

3.  On 29 May 1980, he reenlisted for a period of 3 years.

	a.  He was promoted to specialist five (SP5)/pay grade E-5 on 4 May 1982.

	b.  On 26 May 1982, he extended his service obligation for a period of
26 months to meet time in service requirements for an overseas tour.  He was honorably discharged on 26 June 1985.

	c.  On 27 June 1985, he reenlisted for 3 years with a waiver due to having a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).

4.  The applicant received NJP under Article 15, UCMJ, on two occasions for:

   a.  Wrongfully driving a vehicle while impaired by alcohol on 27 October 1985.

   b.  Wrongful use of marijuana based on a positive urinalysis conducted on
5 December 1985.

5.  The company commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct based on commission of a serious offense.  

6.  The applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him and he declined that opportunity.

	b.  He waived personal appearance before an administrative separation board.
   
   c.  He indicated that he would not submit statements in his own behalf.

   d.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharged was issued to him.

   e.  He acknowledged he understood that if he received a discharge certificate/ character of service which was less than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law and that he may expect to encounter substantial prejudice in civilian life.
   
   f.  He also acknowledged that could make application to the Army Discharge Review Board or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   g.  The applicant and consulting counsel both placed their signature on the document.

7.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

8.  The separation authority approved the chain of command's recommendation for discharge and directed that the applicant be:

* reduced to the lowest enlisted grade
* discharged under the provisions of Army Regulation 635-200,
paragraph 14-12c, for misconduct
* issued an Under Other Than Honorable Discharge Certificate

9.  The applicant's DD Form 214 shows he was discharged on 5 June 1986 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense with his service characterized as under conditions other than honorable.

	a.  He completed 8 years, 11 months, and 8 days of active service.

	b.  Item 18 (Remarks) shows:  "Immediate reenlistments this period:  770628 to 800528; 800529 to 850626; 850627 to 860605."

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



11.  In support of his application, the applicant provides a VA Health Care Fact Sheet 16-6 (March 2010) that discusses the impact on eligibility for VA Health Care benefits based on Other Than Honorable Discharges.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under:

* Article 111 for drunken or reckless operation of a vehicle 
* Article 112a for wrongful use, possession, etc., of controlled substances

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

	a.  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 (one for which a punitive discharge is warranted and authorized), 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.  

	b.  Chapter 3, 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.

	c.  Chapter 3, 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 contends his discharge should be upgraded because he had two honorable periods of service and he desires to obtain VA health care and other benefits.



2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reason therefore was appropriate and equitable.

3.  The applicant's DD Form 214 properly shows both periods of honorable active service (i.e., from 28 June 1977 through 28 May 1980 and from 29 May 1980 through 26 June 1985).

4.  The evidence of record shows the applicant:

	a.  Received NJP on two occasions during the period of service under review:

* for wrongfully driving a vehicle while impaired by alcohol
* for wrongful use of marijuana

	b.  He completed less than 1 year of his 3-year reenlistment commitment.  

	c.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' 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.  Any questions regarding eligibility for health care (and other benefits) should be addressed to the VA.

6.  In view of all of the foregoing, there is no basis for granting the 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)                                         AR20120001068



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ABCMR Record of Proceedings (cont)                                         AR20120001068



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