BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140001973 


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, in effect, an upgrade of his discharge under other than honorable conditions to a general discharge.

2.  The applicant states he would like to have his discharge upgraded to apply for Veterans Retraining Assistance Program (VRAP) benefits.  He states:

* He was discharged under other than honorable conditions
* He understood he could still apply for veterans benefits
* He applied for VRAP educational benefits and was notified he was not eligible for those benefit
* He has been trying with every agency to get clarification of his benefits
* He has always been eligible for Department of Veterans Affairs (VA) benefits to attend school

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) dated 6 December 2013
* Notice of Disagreement dated 24 October 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 8 December 1986
* Six letters from friends, family members, and his church pastor all attesting to his good character and post-service conduct
* Application for VRAP dated 9 July 2012
* VA letter dated 18 July 2012 (two copies)
* Self-authored letter dated 2 January 2013

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 17 January 1977.  He completed training as an infantryman.  He remained on active duty through continuous reenlistments.

3.  On 5 September 1986, the applicant was notified that charges were pending against him for the following offenses:

* Being disrespectful towards a superior noncommissioned officer (NCO)
* Disobeying a lawful order from a superior NCO (two specifications)
* Disobeying a lawful order from a commissioned officer
* Driving a vehicle while intoxicated
* Violating a general regulation
* Being drunk while posted as a sentinel

4.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood:

* If his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate
* He could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* He could be ineligible for many or all benefits administered by the VA
* He could be deprived of his rights and benefits as a veteran under both Federal and State laws
* He could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

5.  On 20 November 1986, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 8 December 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 9 years, 10 months, and 22 days of net active service this period.

7.  On 19 July 1988, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

8.  The applicant provides a Notice of Disagreement in which he disagrees with the decision made by the VA to deny his request for VRAP benefits.  He provides six letters from friends, family members, and his church pastor all attesting to his good character and post-service conduct and a self-authored letter requesting a copy of his DD Form 214.  He provides two copies of a VA letter explaining why his claim was denied and an application for VRAP benefits.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished to an individual who was 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 applicant's contentions have been noted and his supporting evidence has been considered.

2.  The applicant's record shows he had charges pending against him for numerous offenses.  He submitted a request for discharge for the good of the service – in lieu of trial by court-martial.   In his request for discharge he acknowledged he understood that if his request was approved he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

3.  The fact that he is now seeking VRAP benefits is not a sufficient justification for upgrading his discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140001973



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ABCMR Record of Proceedings (cont)                                         AR20140001973



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