IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130001287 


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.

2.  The applicant states he attempted to apply for Department of Veterans Affairs (VA) benefits, but he was denied due to the character of his discharge.  He contends that he has not been in legal troubles since his discharge from the military.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the VA.

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 6 June 1979.  Upon completion of initial entry training he was awarded military occupational specialty 11B (Infantryman).

3.  He accepted nonjudicial punishment on 3 December 1979 for being absent without leave (AWOL) during the period 16 November-3 December 1979.

4.  He was again AWOL on 4 February 1980.

5.  On 11 June 1980, he was apprehended by civilian authorities for burglary and confined in the county jail.  On 8 August 1980, he was released from civilian confinement and returned to military control.

6.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  His records do contain a properly-constituted DD Form 214 which identifies the authority and reason for his separation.

7.  His DD Form 214 shows he was discharged on 11 September 1980 in the rank/grade of private/E-1 after completing 10 months and 12 days of creditable active service with 145 days of lost time.  It also shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of conduct triable by court-martial with his service characterized as under other than honorable conditions.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

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's contention that his discharge should be upgraded because he is attempting to obtain benefits from the VA and because he has not been in trouble since his discharge has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for VA benefits.

2.  His record is void of the facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice 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.  It is presumed that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial after consulting with legal counsel.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record of indiscipline includes nonjudicial punishment, court-martial charges for being AWOL, and 145 days of lost time.  Based on his record of indiscipline, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

4.  Based on the forgoing, there is no basis to grant the 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)                                         AR20130001287



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ABCMR Record of Proceedings (cont)                                         AR20130001287



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