IN THE CASE OF:	  

		BOARD DATE:  11 September 2012

		DOCKET NUMBER:  AR20120004050 


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 to a general discharge.

2.  The applicant states:

* his discharge was based on a minor disciplinary infraction and it was taken an as alternative to the threat of being court-martialed
* he desires an upgrade of his discharge in order to qualify for Department of Veterans Affairs (VA) medical benefits 
* he enlisted at the age of 17 and at age 19, he got caught stealing a used piece of tin valued at $1.72; the tin came from an old firing range and he was going to use it to make a roof for a doghouse
* he was told he could go to Cleveland for an upgrade of his discharge, but once there, he was told the Government ran out of money
* he is homeless and he was told he was eligible for medical benefits
* he has 2 tumors and is scheduled for surgery; however, he now being told he has no medical benefits anymore

3.  The applicant provides:

* self-authored statements
* Privacy Act Release Form
* VA fax cover sheet, dated 21 November 2011


* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA letter, dated 22 September 2011

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 on 19 July 1979 at age 17 with an approved moral waiver due to his admitted prior use of marijuana.  He completed training and he was awarded military occupational specialty 76C (Materiel Supply Specialist).  The highest rank/grade he attained while on active duty was private first class (PFC)/E-3.

3.  On 24 June 1980, the applicant received a Letter of Reprimand for actions leading to suspected possession of marijuana.

4.  Orders 41-778, issued by Headquarters, 9th Infantry Division, Fort Lewis, WA, dated 2 March 1981, reduced the applicant from PFC/E-3 to private (PV1)/E-1 effective 26 February 1981.

5.  The specific facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains a DD Form 214, as also provided by the applicant, that shows he was discharged on 6 March 1981 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, with a character of service of under other than honorable conditions.  This form also shows he completed 1 year, 7 months, and 18 days of creditable active service.

6.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


7.  The applicant provides self-authored statements, Privacy Act Release Form, and a VA fax cover sheet to his Member of Congress outlining his circumstances and requesting assistance.

8.  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 3-7a 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.  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 request for an upgrade of his under other than honorable conditions discharge was carefully considered.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the 


rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  His record shows he was 17 years of age when he enlisted.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120004050



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ABCMR Record of Proceedings (cont)                                         AR20120004050



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