IN THE CASE OF:
BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120011153
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 upgrade of his under other than honorable conditions discharge to an honorable discharge.
2. The applicant states he was dedicated to the call of duty and he did a good job as an enlisted Soldier in the field artillery. He now has hearing problems, a bad back, and bad knees from lifting projectiles for the M-109 Howitzer.
a. He states he also suffers from a heart condition, high blood pressure, diabetes, post-traumatic stress disorder, migraine headaches, sleepless nights, arthritis, and poor eyesight. He is also afraid of airplanes and helicopters due to the war games he participated in while he was in the Army.
b. He adds he did not suffer from these medical conditions until after he was separated from military service. Therefore, he should receive compensation.
3. The applicant provides a Tift Community Health Center letter in support of his request.
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 14 June 1979 for a period of 4 years and 4 months. He was awarded military occupational specialty 13B (Cannon Crewman).
3. The applicant reenlisted in the RA on 13 May 1983 for a period of 4 years.
4. On 29 November 1984, the applicant's commander initiated a bar to reenlistment against the applicant based on dereliction of duty and a domestic disturbance. On 3 January 1985, the battalion commander approved the bar to reenlistment.
5. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on three occasions for:
* willfully disobeying a lawful order from a noncommissioned officer on
20 March 1985
* leaving his appointed palace of duty without authority on 23 March 1985
* failing to go at the time prescribed to his place of duty on 26 June 1985
6. Court-martial charges were preferred against the applicant for violation of the UCMJ, Article 86, for absenting himself from his unit from 30 August 1985 to
4 July 1986.
7. The applicant's military personnel records do not contain a complete copy of his separation packet.
a. His company commander provided a summary of his interview with the applicant that shows the applicant acknowledged his offense and expressed his desire for discharge from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service) and an under other than honorable conditions discharge.
b. On 30 July 1986, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.
8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 August 1986 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with his service characterized as under other than honorable conditions.
a. He completed 6 years, 3 months, and 13 days of active service this period.
b. He had 316 days of time lost.
9. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.
10. In support of his application the applicant provides a Tift Community Health Center, Tifton, GA, letter, dated 9 September 2011, that shows he was diagnosed with a cardiac condition, but he had not completed tests for the condition.
11. Army Regulation 635-200, in effect at the time, 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 should be upgraded because he did a good job as an enlisted Soldier, he now suffers from service-connected medical conditions, and he deserves compensation.
2. The regulations governing the Board's operation require 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. The applicant has not provided any evidence sufficient to support upgrading his discharge.
3. The applicant was barred from reenlistment, he had at least three incidents that resulted in the imposition of NJP, and he had 316 days of time lost during the period of service under review. 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.
4. Therefore, there is an insufficient basis for granting the requested relief.
5. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits (e.g., healthcare, compensation, etc.). 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 such benefits should be addressed to the Department of Veterans Affairs 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 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) AR20120011153
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ABCMR Record of Proceedings (cont) AR20120011153
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