IN THE CASE OF:	

		BOARD DATE:	    16 April 2014

		DOCKET NUMBER:  AR20130014895 


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, that his discharge under other than honorable conditions be upgraded to a more favorable discharge. 

2.  The applicant states, in effect, that he desires an upgrade of his discharge to qualify for Department of Veterans Affairs (VA) benefits. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his denial of benefits 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 22 January 1980 for a period of 3 years and assignment to the 101st Airborne Division at Fort Campbell, KY.
3.  He completed basic training at Fort Jackson, SC and remained there to undergo advanced individual training (AIT) as a supply specialist in military occupational specialty (MOS) 76Y.

4.  On 5 May 1980, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a commissioned officer.

5.  He was academically dropped from 76Y training and transferred to AIT as a food service specialist on 14 May 1980.  

6.  On 11 June 1980, NJP was imposed against him for the wrongful possession of marijuana.

7.  On 11 July 1980, NJP was imposed against him for failure to go to his place of duty.

8.  Charges were preferred against the applicant for being absent without leave (AWOL) from 2 to 9 June 1980, 12 to 17 August 1980, 1 to 5 September 1980, 24 to 29 September 1980, and 1 October 1980 to 14 January 1981, three specifications of failure to go to his place of duty, stealing an airline ticket belonging to another Soldier, wrongful possession of marijuana, and wrongful possession of stolen property.

9.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the VA in St. Louis, MO in 1987.  However, his records do contain a duly-authenticated DD Form 214 which shows the applicant was discharged under other than honorable conditions on 4 March 1981, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in lieu of trial by court-martial.  He completed 9 months and 6 days of active service and he had 127 days of lost time due to being AWOL and he was not MOS qualified.  

10.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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, an undesirable discharge was considered appropriate at the time.

	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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights and that the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he would have admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his multiple absences and misconduct and his otherwise undistinguished record of service.  Accordingly, his service does not rise to the level of a general discharge.

4.  Additionally, while the Board does not have any authority over the VA, the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.
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)                                         AR20130014895



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ABCMR Record of Proceedings (cont)                                         AR20130014895



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