IN THE CASE OF:	  

		BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130021959 


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 that his under other than honorable conditions discharge be upgraded.

2.  The applicant states he had one four-year enlistment which was honorable but he messed up in his fifth year and he was given an under other than honorable discharge.  He contends that he was young and made a mistake.  He is older now and he is finding it difficult to obtain any help from the Department of Veterans Affairs (VA).

3.  The applicant provides a Certification of Military Service and a 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 was born on 3 April 1957.  He enlisted in the Regular Army on 
4 October 1977.  On 30 April 1980, he reenlisted for a period of three years.

3.  On an unknown date, court-martial charges were preferred against him for rape, assault, and larceny.

4.  On or around 15 June 1982, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

5.  He acknowledged in his request that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge (s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged he understood that he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

6.  On 28 June 1982, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 22 July 1982, he was discharged accordingly.

7.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  He provides a Certification of Military Service that shows he served honorably from 4 October 1977 to 29 April 1980.  He also provides a letter from the VA that shows he was denied VA benefits based of the character of his service for the period 30 April 1980 to 22 July 1982.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

	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.  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.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge 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 laws and regulations. There is no indication the request was made under coercion or duress.
4.  His prior honorable service was noted; however, his record of indiscipline includes court-martial charges for rape, assault, and larceny.  Therefore, based on the seriousness of his misconduct, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that he was young; however, age is not a mitigating factor for his criminal behavior.  He completed one term of honorable service which shows he was mature enough to serve.  Additionally, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Based on the foregoing, there is no basis to grant the requested relief.

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)                                         AR20130021959



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ABCMR Record of Proceedings (cont)                                         AR20130021959



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