IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120004722 


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:

	a.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 September 1983 to show his service in the Army National Guard (ARNG) and

	b.  an upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

* he was not given credit for his time in the ARNG from 1975 to 1979
* he was told if he accepted a discharge for the good of the service he would not lose benefits and his discharge would not be considered dishonorable
* he had a hard time adjusting after losing his father
* he was not given proper representation
* he preferred to plead his case before a court-martial and receive punishment but was told he would lose benefits
* he was treated for a drug and alcohol addiction at a Department of Veterans Affairs (VA) center for more than 6 months
* he is now being denied medical assistance by the VA due to the character of his discharge



3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) for the period ending 25 September 1976
* DD Form 214 for the period ending 7 September 1983
* DD Form 215 (Correction to DD Form 214)

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 ARNG on 9 February 1976 for a period of 6 years.  He was ordered to active duty for training on 19 March 1976.  He was released from active duty on 25 September 1976.

3.  His DD Form 214 for the period ending 25 September 1976 shows in:

* item 18a (Net Active Service This Period) – 6 months and 7 days of active service
* item 18d (Prior Inactive Service) – 1 month and 10 days (ARNG service)

4.  On 24 June 1979, he was honorably discharged from the ARNG and involuntarily ordered to active duty on 25 June 1979 for a period of 17 months and 8 days.  On 28 August 1980, he was honorably discharged for immediate enlistment.  He enlisted in the Regular Army on 29 August 1980 for a period of 3 years.

5.  His discharge packet is not available; however, his Army Discharge Review Board (ADRB) proceedings show:

	a.  He received nonjudicial punishment on 13 July 1981 for possession of cocaine.

	b.  He was absent without leave (AWOL) from 11 June 1982 to 26 July 1983.  Charges were preferred against the applicant for the AWOL period.

	c.  On 28 July 1983, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He elected not to make a statement in his own behalf.

	d.  On 5 August 1983, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

6.  On 7 September 1983, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 3 years, 5 months, and 6 days of creditable active service.  Records show he had approximately 469 days of lost time.

7.  His DD Form 214 for the period ending 7 September 1983 shows in:

* item 12d (Total Prior Active Service) – he had 6 months and 7 days of prior active service
* item 12e (Total Prior Inactive Service) – he had 2 years, 10 months, and 9 days of prior inactive service (ARNG service)

8.  On 8 March 1984, the ADRB denied his request for a discharge upgrade.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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 contends his ARNG service is not shown on his DD Form 214 for the period ending 7 September 1983.  However, items 12d and 12e of this DD Form 214 shows he had 3 years, 4 months, and 16 days of prior active and inactive service (ARNG service).  Therefore, there is insufficient evidence on which to amend this DD Form 214.

2.  He contends he was not given proper representation and he preferred to go before a court-martial and receive punishment.  However, there is no evidence to show he did not receive proper representation.  The evidence shows he consulted with counsel on 28 July 1983 prior to voluntarily requesting discharge in lieu of trial by court-martial.

3.  He contends he was told if he accepted a discharge for the good of the service he would not lose benefits and his discharge would not be considered dishonorable.  However, there is no evidence of record and he provided no evidence to support this contention.

4.  He contends he is now being denied medical assistance by the VA due to the character of his discharge.  However, a discharge is not changed for the purpose of qualifying an applicant for VA benefits.

5.  His record of service during his last enlistment included one NJP for cocaine possession and 469 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

6.  It is presumed that his voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

7.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

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

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)                                         AR20120004722



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ABCMR Record of Proceedings (cont)                                         AR20120004722



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