IN THE CASE OF:	  

		BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130020130 


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 (UOTHC) discharge.  

2.  He states he had no military disciplinary action prior to his discharge and he wishes to apply for benefits from the Department of Veterans Affairs (VA).  

3.  He provides no documentary evidence in support of his request.

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 21 August 1979, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 31E (Field Radio Repairer).  
3.  A DA Form 4187 (Personnel Action), dated 29 December 1982, shows his duty status was changed from present for duty to confined by civil authority effective 24 December 1982.  A remark on the form shows he was apprehended at the border between Holland and Belgium with hashish in his possession.  

4.  The available records do not contain the complete facts and circumstances surrounding his discharge.  However, his record does contain the following:

	a.  A memorandum, subject:  Recommendation for Elimination [Under the Provisions of] Chapter 14, [Army Regulation] 635-200 re:  [Applicant], dated 19 September 1983, shows Lieutenant General (LTG) B----, Commander, 21st Support Command, directed the applicant's discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-9, due to conviction by a civil court.  LTG B---- directed the applicant be issued a UOTHC Discharge Certificate.

	b.  A DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) he was confined by civil authorities from 24 December 1982 through 20 June 1983.

	c.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 September 1983 after completing 3 years, 7 months, and 13 days of net active service.  The form shows in:

* item 24 (Character of Service) – UOTHC
* item 25 (Separation Authority) – Army Regulation 635-200, chapter 14
* item 28 (Narrative Reason for Separation) – "CIVILIAN CONVICTION"
* item 29 (Dates of Time Lost During this Period) – "821224 TO: 830620"

5.  The record shows no evidence of disciplinary action taken against the applicant by a military authority during his active duty service.

6.  On 20 July 1988, he was notified that the Army Discharge Review Board had denied his request for a change in the character of and/or reason for his discharge.  

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

	b.  Paragraph 3-7a provides that an honorable discharge (HD) 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 (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.  The available evidence does not support upgrading the applicant's UOTHC discharge.  

2.  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.

3.  The complete facts and circumstances of his discharge are not available; however, his record shows he was apprehended with hashish in his possession, confined by civil authorities for approximately 6 months, and discharged based on a conviction by a civil court.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  The applicant contends that he was not the subject of any military disciplinary action prior to his discharge.  While this may be true, it is reasonable to presume that, had he been returned to military control instead of being processed through 



a civilian judicial system, he would have been subject to disciplinary action under the Uniform Code of Military Justice.  

5.  Due to his conviction by a civil court, his service was unsatisfactory.  Therefore, he is not entitled to an HD or 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)                                         AR20130020130





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ABCMR Record of Proceedings (cont)                                         AR20130020130



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