IN THE CASE OF:
BOARD DATE: 4 March 2014
DOCKET NUMBER: AR20130011147
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 a general discharge (GD).
2. The applicant states he has no health insurance and requests an upgrade of his discharge to obtain healthcare benefits from the Department of Veterans Affairs.
3. The applicant provides two DD Forms 214 (Report of Separation 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. On 15 January 1975, the applicant enlisted in the Regular Army. On 27 February 1977, he was honorably discharged for the purpose of immediate reenlistment.
3. On 28 February 1977, he reenlisted for 6 years in the rank of specialist four/
pay grade E-4.
4. He accepted nonjudicial punishment on three occasions during the period 19 December 1978 to 11 June 1979 for:
* dereliction in the performance of his duties for willfully failing to turn in approximately $30.00 with the dining facility cash sheets
* uttering a check for which he failed to maintain sufficient funds in the bank for payment
* failing to go at the time prescribed to his appointed place of duty and using a military vehicle to tow a privately-owned vehicle
5. A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 15 May 1979, shows his record of non-payment of just debts. This list shows he failed to make payments on a loan and four occasions of dishonored checks. An accompanying statement from his commander shows he was counseled for failing to make just compensation to the Beneficial Finance Company and he was counseled on three occasions concerning dishonored checks.
6. His complete discharge packet is not contained in his records. However, his DD Form 214 shows he was discharged UOTHC on 24 August 1979 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, for misconduct frequent incidents of a discreditable nature with civil or military authorities. He completed a total of 4 years, 7 months, and 10 days of active service.
7. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included a pattern of misconduct (consisting of discreditable involvement with civil or
military authorities or conduct prejudicial to good order and discipline). A discharge UOTHC was normally considered appropriate for a Soldier discharged under this chapter.
b. A GD 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. In the absence of evidence to the contrary it is presumed the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that his discharge UOTHC appropriately characterizes his service. The available evidence does not support the applicant's request for an upgrade of his discharge UOTHC to a GD.
2. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making applicants eligible for veterans' healthcare benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
3. His records show he was counseled repeatedly due to his failure to pay his just debts. He received nonjudicial punishment on three occasions for various offenses. Based on the applicant's record of misconduct, his service was not sufficiently meritorious to warrant a GD.
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) AR20130011147
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ABCMR Record of Proceedings (cont) AR20130011147
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