BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140003756 


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 to an honorable discharge (HD).

2.  The applicant states, in effect, he needs an upgrade to obtain Department of Veterans Affairs (VA) health benefits.

3.  The applicant provides no supporting documentation.

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 16 July 1976, completed training, and was awarded the military occupational specialty 13B (Field Artillery Crewman).

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on –

* 24 September 1976, for possession of a controlled substance – marijuana
* 4 October 1976, for possession and use of a controlled substance – marijuana
* 2 February 1977, for possession of a controlled substance – marijuana
* 8 July 1977, for failure to place of duty

4.  On 19 July 1977, the applicant was charged with disrespect toward a commissioned officer and possession of a controlled substance – marijuana.

5.  On 18 August 1977, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

6.  The discharge authority accepted the applicant's request for discharge and directed he be discharged UOTHC.

7.  The applicant was discharged UOTHC on 8 September 1977.  He had 1 year, 1 month, and 23 days of creditable active service with no lost time.  He is not shown to have received any personal awards, decorations, commendations, citations, or recommendations.

8.  On 2 October 1985, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.  He requested a personal appearance before a Traveling Panel; however, he either failed to respond to the scheduling letters or failed to report for the hearing. 


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

	a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  In addition to the misconduct that led to the preferral of court-martial charges and his discharge, the applicant had a history of illegal drug use dating from just two months after his enlistment.  This history of misconduct clearly does not demonstrate satisfactory performance of duties required of Soldiers warranting an upgrade of his discharge to either a GD or HD.

3.  Entitlement to VA benefits is neither within the purview of this Board nor is it normally considered a basis for granting relief.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140003756



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ABCMR Record of Proceedings (cont)                                         AR20140003756



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