IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130015880 


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 to an honorable discharge.

2.  The applicant states he has been a loyal respected citizen of the United States since he was discharged.  He worked for Dallas Cast Stone Incorporated
31 years.  Now his health has started to fail and he needs medical assistance from the Department of Veterans Affairs (VA).  He has registered with the local VA but he has to wait for a change of his discharge status to be enrolled in the VA health care plan. 

3.  The applicant provides no additional evidence in support of his application.

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 27 December 1979, he enlisted in the Regular Army for 4 years.  On 
4 April 1980, he was assigned to Battery A, 1st Battalion, 11th Field Artillery at Fort Lewis, WA.

3.  On 29 May 1980, he accepted nonjudicial punishment (NJP) for wrongfully possessing marijuana.

4.  On 4 August 1980, court-martial charges were preferred against the applicant for:

* behaving with disrespect toward a commissioned officer
* failing to obey a lawful command from a commissioned officer
* two specifications of being disrespectful in language toward a noncommissioned officer (NCO)
* being drunk on duty
* committing an assault on a private with a means likely to produce grievous bodily harm
* wrongfully possessing marijuana
* two specifications of communicating a threat to an NCO

5.  On 13 August 1980, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service.  He acknowledged he understood the offenses he was charged with and he was:

* making the request of his own free will and without coercion
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

6.  He was advised he could submit any statements he desired in his own behalf. He elected not to submit any statements in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits

7.  On 22 August 1980, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the applicant be reduced to private (PV1)/E-1 and discharged under other than honorable conditions.

8.  On 3 September 1980, he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of administrative discharge conduct triable by court-martial.  He had completed 8 months and 7 days of creditable active service that was characterized as under other than honorable conditions.  

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an Under Other Than Honorable Conditions Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for VA benefits.  Every case is individually 


decided based upon its merits when an applicant requests a change in his or her discharge.

2.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  He received an NJP less than 6 months after reporting to his first duty assignment, his failure to complete the period of service he contracted for, and the seriousness of the charges preferred against him clearly show his short period of service was unsatisfactory.

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)                                         AR20130015880



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ABCMR Record of Proceedings (cont)                                         AR20130015880



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