IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20140000269 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he was unable to perform his duties because of injuries he sustained from a fall.  He suffered a back injury that prevented him from doing certain things.  He believes the UOTHC was rendered in error because of his injuries.  He is now in need of this upgrade in order to obtain Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 6 July 1976, the applicant enlisted in the Regular Army.  He completed his initial training as a supply specialist.

3.  On 22 November 1976, the applicant was assigned to Headquarters and Headquarters Company, 4th Battalion, 23rd Infantry Regiment, located at Fort Richardson, AK.

4.  On 5 January 1977, the applicant was reassigned within the battalion to Company A.

5.  On 8 July 1977, the applicant accepted nonjudicial punishment (NJP) for being disrespectful in language towards his superior noncommissioned officer (NCO).

6.  A DA Form 4126 (Bar to Enlistment/Reenlistment Certificate) was initiated on 14 September 1977.  The commander listed the NJP discussed above and two additional NJPs for disobeying an officer and for failing to repair.  The commander stated that the applicant was a totally substandard Soldier who actively resisted any attempt at rehabilitation.  He was originally assigned to the supply room where he showed a distinct lack of ability in processing paperwork.  He was moved to the arms room where he had indicated an interest.  After about 4 months, he was relieved for being drunk on duty and in possession of the arms room keys.  He was given a rehabilitative move to the first platoon for duty as a rifleman, where he performed poorly.  The bar to reenlistment was approved on 
12 October 1977.

7.  The discharge packet is missing from his military records.  However, his 
DD Form 214 shows that he was administratively discharged on 5 December 1977 due to misconduct and frequent involvement with authorities of a discreditable nature.  The specific regulatory provisions governing his discharge are not shown on the available copies of his DD Form 214.  His service was characterized as UOTHC.  He completed 1 year and 5 months of creditable active service.

8.  Army Regulation 635-200 (Personnel Separations) 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 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 (emphasis added), 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.  

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

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because he was unable to perform his duties due to injuries he sustained from a fall.  He further argues that he needs this upgrade in order to obtain VA benefits.

2.  There is no evidence in the available records and the applicant has not provided any such documentation showing that he had suffered any injury or injuries that would have prevented him from performing his duties.

3.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140000269





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ABCMR Record of Proceedings (cont)                                         AR20140000269



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