IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130021403 


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 upgrade of his discharge to honorable.

2.  The applicant states he had only 4 months to go.  He was drunk and assaulted an officer.  He asked to do the bad time but was refused.  He is homeless and is seeking help from the Department of Veterans Affairs (VA).

3.  The applicant provides no documentation 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 31 January 1980, the applicant enlisted in the Regular Army.  He completed training as an infantryman and was assigned to Korea where he served without incident and progressed normally to pay grade E-3.  He was transferred to Fort Irwin, CA.

3.  On 30 March 1982, charges were preferred against the applicant for assault consummated by battery upon a noncommissioned officer engaged in the execution of his duties and six other Soldiers.

4.  On 13 April 1982, he consulted with legal counsel and he voluntarily 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 he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive an under other than honorable conditions discharge.  He acknowledged he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the VA.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge.

5.  The applicant also submitted a statement in his own behalf wherein he contended that he, "should get a Chapter 10" because he had served for 2 years and felt it would be to his and the Army's benefit for him to get out.  "I would like to stay in, but it would be better for me as a whole to get out."  He also thought that his family would benefit if he were to get out.

6.  The applicant's chain of command recommended approval of the applicant's request.  The separation authority approved his request and directed he receive an under other than honorable conditions discharge.

7.  On 6 May 1982, the applicant was discharged, under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under other than honorable conditions.  He had completed 2 years, 3 months, and 6 days of creditable active service and he had no recorded lost time.

8.  In January 1991, the Army Discharge Review Board denied the applicant's request to upgrade his discharge. 




9.  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 under other than honorable conditions discharge is normally considered appropriate.

	b.  Paragraph 3-7a states 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's request for a chapter 10 discharge, after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a trial by court-martial and the felony conviction that he might have received.

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

3.  The available evidence is insufficient to support his request.  There is no basis for granting the applicant an honorable or a general discharge.

4.  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 VA.



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)                                         AR20130021403





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ABCMR Record of Proceedings (cont)                                         AR20130021403



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