BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003995 


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 under other than honorable conditions (UOTHC) through his Member of Congress.

2.  The applicant states:

	a.  he served his country for 10 years, 4 months, and 22 days and

	b.  he would like an upgrade of his discharge in order to receive medical and homeless veterans' program benefits.

3.  The applicant provides:

* email correspondence between his Congressional representative's office and the National Guard Bureau (NGB)
* NGB letter
* Privacy Act Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* self-authored statement

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 military record shows he enlisted in the Regular Army on 24 August 1977.  He was trained in and served in military occupational specialties 13P (Cannon Crewmember) and 76Y (Supply Specialist).

3.  His record shows he was promoted to the rank of staff sergeant on 3 October 1982 and this was the highest rank he attained.

4.  On 2 November 1987, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* willfully and wrongfully damaging private property and his neighbor's property
* being drunk and disorderly bringing discredit upon himself and the Armed Forces
* operating a vehicle while drunk

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  His record does contain a DD Form 214 that shows he was discharged on 15 January 1988 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, by reason of "misconduct – pattern of misconduct."

6.  The applicant's DD Form 214 also shows:

* he completed 10 years, 4 months, and 22 days of creditable active military service
* he received a discharge UOTHC
* his enlistment this period as 24 August 1977-2 March 1981
* his reenlistment this period as 3 March 1981-12 May 1985

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 UOTHC is normally considered appropriate.

	a.  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.

	b.  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 his discharge UOTHC should be upgraded to allow him to receive medical and homeless veterans' benefits because he served his country over 10 years was carefully considered and determined not to be sufficiently mitigating to warrant granting the requested relief.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing.  However, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document carries with it a presumption of government regularity in the discharge process.  Therefore, absent evidence to the contrary, it must be presumed that his separation processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The evidence of record confirms the applicant completed his first two terms of enlistment from 24 August 1977 through 12 May 1985 prior to his final reenlistment.  These periods of service should have been characterized as honorable.  It appears it is his intent to upgrade his discharge to qualify for Department of Veteran Affairs (VA) benefits.  He may qualify for medical benefits for any medical condition that arose out of his service during his first two terms of enlistment, to include additional VA benefits.  However, the Army has no jurisdiction over the VA and he should contact the VA to inquire into any benefits that may be due as a result of his honorable service.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20120003995



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ABCMR Record of Proceedings (cont)                                         AR20120003995



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