BOARD DATE:	   26 August 2014

		DOCKET NUMBER:  AR20140001563 


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 his under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states he received his under other than honorable conditions discharge because he had drugs in his possession.  He was very young at the time and only 22 years of age.  He is now 58 years of age and he has changed.  He is having a lot of medical problems and has no income or insurance.  He needs his discharge upgraded so he can be seen at the Department of Veterans Affairs (VA) medical center.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty), three statements of support, and three pages of a criminal records check.

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 enlisted in the Regular Army on 28 August 1974 when he was 19 years of age.  He was assigned to the 2nd Battalion, 33rd Armor Regiment, Germany, on 11 January 1975.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 16 July 1975, for being absent without leave (AWOL) from 10 to 11 July 1975
* 17 December 1975, for wrongfully possessing marijuana

4.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains a DD Form 214 showing he was discharged on 16 March 1977, when he was 22 years and 7 months years of age, in the rank of private/E-1, 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 (separation program designator code JFS), with an under other than honorable conditions character of service.

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

6.  The applicant provides three undated statements of support wherein two individuals stated they knew the applicant for 40 years and one stated she knew him for 10 years.  They all stated he was a good friend, an honest person, and was a dependable, honest worker.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally considered appropriate.
	a.  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.

	b.  Paragraph 3-7b states 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 records are void of the specific facts and circumstances surrounding his discharge.  However, it appears his command preferred court-martial charges against him for an offense or offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service- in lieu of trial by court-martial.

2.  It is presumed that he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed that his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that the type of discharge directed and the reason for separation were appropriate considering the available facts of the case.

3.  The applicant contends that his discharge should be upgraded because he was young at the time of his service.  Records show that he was almost 23 years of age at the time of his discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  Although his post-service conduct may be noteworthy, it does not mitigate the fact that he was charged with the commission of an offense(s) punishable with a punitive discharge during his active duty service.

5.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is no basis for granting the applicant an honorable or a general discharge.
6.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and 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)                                         AR20140001563





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ABCMR Record of Proceedings (cont)                                         AR20140001563



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