BOARD DATE:	31 January 2013  

		DOCKET NUMBER:  AR20120012908 


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) to an honorable discharge.

2.  He states he spent 2 3/4 years in the service and he should be entitled to Department of Veterans Affairs (VA) benefits due to his illness.

3.  He provides no additional evidence.

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 24 May 1977 for a period of 3 years.  At the completion of basic and advanced individual training, he was awarded military occupational specialty 94B (Food Service Specialist).  He was assigned to Panama on 1 November 1977.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on four occasions for the following offenses:

* failing to go at the time prescribed to his appointed place of duty on 26 July 1978, 9 May 1979, and 18 September 1979
* committing an assault upon a specialist four by cutting him in the face with a dangerous weapon on 7 October 1978
* disobeying a lawful order from his superior noncommissioned officer on 16 September 1979

4.  His record also reveals a disciplinary history that includes numerous adverse counseling statements for matters such as:

* failing to report to work
* neglecting to follow instructions
* being suspected of using some type of illegal drug or other substance during duty hours
* failing to repair
* being disorderly in conduct and driving under the influence
* being absent from duty

5.  He was barred from reenlistment on 11 October 1979.

6.  On 19 October 1979, he was found guilty by the Curundu Magistrate Court of possession of marijuana and he was fined $300.00.

7.  On 31 October 1979, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, by reason of misconduct – conviction by a civil court.  He was advised of his rights.

8.  The applicant consulted with legal counsel, requested consideration of his case by a board of officers, requested personal appearance before a board of officers and did not submit statements in his own behalf.

9.  On 15 November 1979, he stated he did not intend to appeal his conviction.

10.  On 21 November 1979, the unit commander recommended the applicant's appearance before a board of officers convened under the provisions of Army Regulation 635-200, chapter 14, paragraph14-33b(1), for the purpose of determining whether he should be discharged before the expiration of his term of service.  The unit commander indicated the applicant was apprehended by Panamanian authorities for driving while intoxicated for which he was fined $150.00 and possession of marijuana for which he spent 4 days in jail and was fined $300.00.

11.  On 5 December 1979, the applicant consulted with counsel again, waived consideration of his case by a board of officers, and submitted statements in his own behalf.  His statements are not available.  However, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as the result of issuance of a discharge UOTHC, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

12.  On 27 December 1979, the separation authority directed the applicant's discharge UOTHC.

13.  The applicant was accordingly discharged on 7 January 1980 under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – civil conviction by a foreign tribunal.  He completed 2 years, 7 months, and 13 days of active military service with 1 day of civil confinement.

14.  On 17 May 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  That regulation provides for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action is taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial, or the sentence by civil authorities includes confinement of 6 months or more without regard to suspension or probation.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  

16.  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.

17.  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's contention regarding his entitlement to VA benefits due to his illness is acknowledged.  However, there are no provisions in Army regulations that allow an upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.

2.  The applicant was found guilty by Curundu Magistrate Court on 19 October 1979 of possession of marijuana.  He was fined $300.00.

3.  The applicant's service record shows he received four Article 15's, numerous adverse counseling statements, and was barred from reenlistment.

4.  It appears the chain of command determined the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.

5.  The evidence of record does not show the actions taken in this case were in error or unjust.  Therefore, there is no 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 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)                                         AR20120012908



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012908



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1