IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010107 


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 review and upgrade of his discharge under other than honorable conditions.

2.  The applicant states that since his discharge he has come to accept the fact that injustices will always occur that adversely affect many people.

	a.  He states that after performing charge of quarters duty at his unit, he was exhausted.  He was approached by a warrant officer (WO) who was very unprofessional and spoke to him in a disrespectful manner.  He lost control, pushed the WO, and the WO fell to the floor.  The WO then reported the applicant to the commanding officer.  He asserts that he was taken advantage of because of his lower rank.

	b.  He sustained a back injury as a result of a tank accident and he suffered frostbite on his left foot; therefore, he should have received a medical discharge.  He is unable to receive medical care from the Department of Veterans Affairs (VA) because of the reason and character of his discharge.

3.  The applicant provides four letters 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, 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 30 October 1979 for a period of 3 years.  He was awarded military occupational specialty 12F (Engineer Tracked Vehicle Crewman).

3.  The applicant received nonjudicial punishment (NJP) for being absent without leave from 11 to 26 February 1981.

4.  Two DA Forms 4187 (Personnel Actions), dated 9 April 1981, show the applicant was confined to the Monterey County Jail, Salinas, CA, on 25 March 1981, sentenced to time served and released, and returned to his unit on 26 March 1981.

5.  The applicant received NJP for misconduct on 22 April 1981 for:

* being disrespectful in language toward a superior noncommissioned officer
* failing to be at his appointed place of duty on 11 and 20 April 1981

6.  On 12 May 1981, the applicant's commander initiated a bar to reenlistment against the applicant.  The brigade commander approved the bar to reenlistment on 20 May 1981.

7.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or a copy of his separation packet.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 17 September 1981 in accordance with Army Regulation 
635-200, chapter 10, with his service characterized as under other than honorable conditions.

	a.  He completed 1 year, 10 months, and 3 days of active service during this period.

	b.  He had 15 days of lost time from 11 to 25 February 1981.

9.  A review of the applicant's military personnel records failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  The applicant provides four letters in support of his request for an upgrade of his discharge:

* Mr. J____ L. B____, Alderman, 22nd Ward, St. Louis, MO, attests to the applicant's leadership in the Hamilton Heights Neighborhood
* Mr. B____ E. W____, Jr., Project Associate II, attests to the applicant's personal character and ability to accomplish assignments
* Mr. P____ M____ attests to the applicant's involvement as a volunteer with the American Red Cross and several other community organizations
* Ms. R____ W____, Legal Administrative Specialist, VA Regional Office,
St. Louis, MO, requests consideration of the applicant's request for an upgrade of his discharge

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

	a.  Chapter 10 shows 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.  

	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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions for the good of the service in lieu of trial by court-martial should have taken into consideration the injustice of the incident that he was involved in and his medical issues.

2.  There is no evidence of record and the applicant provides insufficient evidence to show he had any medical issues during the period of service under review.  

3.  The applicant elected to request discharge in lieu of being court-martialed. The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, after appropriate and proper consultation with a military lawyer tends to show he wished to avoid the court-martial and punitive discharge that he might have received.

4.  The regulation governing the Board's operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

5.  The applicant had three incidents that resulted in the imposition of NJP, he had 15 days of lost time, and he completed only about 22 months of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review 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.

6.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

7.  Therefore, there is an insufficient basis for granting the requested relief.



8.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an 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, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

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)                                         AR20120010107



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ABCMR Record of Proceedings (cont)                                         AR20120010107



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