IN THE CASE OF:	  

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130008578 


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 under other than honorable conditions discharge to honorable.

2.  The applicant states:

* it has been over 20 years since his discharge
* this discharge has been a burden to him and his family
* he wants to obtain health and education benefits
* he has asthma and needs medical treatment

3.  The applicant provides:

* two character reference letters
* service medical records
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 was born on 8 January 1966.  He enlisted in the Regular Army on 17 January 1985 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 31V (tactical communication system operator/mechanic).  He arrived in Germany on 16 September 1985.

3.  On 30 March 1987, charges were preferred against him for:

* larceny (4 specifications)
* writing bad checks (3 specifications)
* signing a false official record

4.  On 14 April 1987, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected to make a statement in his own behalf.  In summary, he apologized, admitted he made a serious mistake, and indicated he was making restitution.  His wife and defense counsel also submitted statements in his behalf.

5.  On 15 May 1987, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

6.  On 19 June 1987, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 2 years, 5 months, and 3 days of creditable active service.
7.  On 11 August 1988, the Army Discharge Review Board denied his request for a discharge upgrade.

8.  He provides two character reference letters from a friend and reverend who attest:

* the applicant helped a friend with gas money
* he has recently given his life to Christ
* God has forgiven him
* he suffers from asthma and needs proper treatment 

9.  He also provides a statement, dated 8 April 2013, wherein he states:

* he met his wife in advanced individual training
* in Germany they were stationed 50 miles apart and they could only see each other on the weekend
* his wife got pregnant and she was always complaining about things the baby needed
* renting cars to see his wife was taking all of his money
* his wife told him if he didn't find a way to help she was leaving him
* he found a box of checks that belonged to a service member and he forged them
* he rented cars for a month at a time to see his wife every day and he bought their baby everything he needed
* his wife was happy and she did not leave him
* they are still married with two children
* he was 21 years old at the time 

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

	a.  Chapter 10 provides 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.  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.  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 contends it has been over 20 years since his discharge; however, the passage of time is normally not a basis for upgrading a discharge.

2.  He contends he was 21 years old at the time.  However, age is not a sufficiently mitigating factor.  He was 19 years old when he enlisted and he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, he completed over 2 years of service prior to his misconduct.

3.  The character reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

4.  His record of service included serious offenses for which trial by court-martial was recommended.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His voluntary request for discharge for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20130008578



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ABCMR Record of Proceedings (cont)                                         AR20130008578



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