BOARD DATE: 29 October 2013
DOCKET NUMBER: AR20130005022
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, in effect, reconsideration of his previously-denied request for an upgrade of his general discharge to honorable.
2. He states that since he received a general discharge, he is unable to receive benefits through the Department of Veterans Affairs (VA). Additionally, he opines that the only way that a discharge for misconduct may be rendered is by receiving a court-martial which he did not receive.
3. He does not provide any additional evidence.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110018487, on 19 April 2012.
2. The applicant's new argument was not previously considered by the Board.
3. The applicant enlisted in the New York Army National Guard (NYARNG) on
5 August 1976. On 1 June 1977, he was involuntarily ordered to active duty as the result of unsatisfactory participation in the NYARNG. He was assigned to Company A, 2d Battalion, 15th Infantry Regiment, 3rd Infantry Division, Germany.
4. His record shows he received nonjudicial punishment under Article 15, Uniform Code for Military Justice (UCMJ) on four separate occasions.
5. On 4 October 1978, he was notified of the company commander's intent to recommend his discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, by reason of misconduct.
6. On 5 October 1978, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by an administrative separation board and to consult with and be represented by counsel. He elected not to submit statements on his behalf.
7. On 7 November 1978, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14 with a General Discharge Certificate.
8. His DD Form 214 shows he was discharged on 24 November 1978 under the provisions of Army Regulation 635-200, chapter 14, misconduct.
9. Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.
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.
DISCUSSION AND CONCLUSIONS:
1. There are no provisions in Army regulations that allow the 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 which warrants the upgrade.
2. The available evidence confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. The record further shows the applicant's discharge accurately reflects his overall record of service.
3. Additionally, as cited in paragraph 8 of this document, a Soldier may be separated for misconduct (chapter 14) for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and/or convictions by civil authorities. Therefore, his contention that the only way he may be discharged for misconduct is by receiving a court-martial is not supported by the available evidence.
4. The applicant's record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.
5. The overall merits of this case, including his argument, are insufficient as a basis to reverse the previous decision.
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 to amend the decision of the ABCMR set forth in Docket Number AR20110018487, dated 19 April 2012.
_______ _ 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) AR20130005022
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