IN THE CASE OF:  

		BOARD DATE:  8 October 2014

		DOCKET NUMBER:  AR20140004316 


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 general or honorable.

2.  The applicant states he was discharged because of head injuries he sustained in Korea.  He has no benefits and he believes he is entitled to benefits.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Memorandum dated, 1 March 1985 
* VA Administrative Decision, dated 3 May 1985

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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, and 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 26 June 1979.  He held military occupational specialties 11C (Indirect Fire Infantryman) and 16E (HAWK Fire Control Crewmember).  

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Korea from 13 December 1979 to 25 November 1980.  The highest rank he attained was private first class (PFC)/E-3.  Item 21 (Time Lost) shows 44 days of time lost from 26 November 1980 through 8 January 1981.

4.  His record shows:

	a. On 12 December 1980, he was convicted by a special court-martial, in accordance with his pleas, of the wrongful appropriation of property belonging to other Soldiers and unlawfully entering the room of the other Soldiers; and 

	b.  On 14 July 1982, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) of violating a lawful order from his superior noncommissioned officer. 

5.  The applicant's discharge packet is not available for review.  His DD Form 214 shows, on 8 June 1982, he was separated with a discharge under conditions other than honorable, 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.  He had completed 2 years and 10 months of active duty service.  Time lost is shown as 26 November 1980 to 8 January 1981.

6.  There is no record showing he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

7.  The applicant provides a 3 May 1985 VA Administrative Decision document which describes his record of misconduct and that he was given a UOTHC discharge.  The conclusion in the document shows the applicant's UOTHC discharge is a bar to all gratuitous benefits administered by the VA.  He is entitled to health care under Chapter 17, Title 38, U.S. Code for any disability determined to be service-connected.

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	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.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins 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 has provided no evidence to substantiate his assertion that he was discharged because of head injuries he sustained in Korea, 

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  Furthermore, in the absence of evidence showing otherwise, the discharge process must be presumed to have been in accordance with applicable law and regulations.

3.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.
4.  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.  Granting of veterans' benefits is not within the purview of the ABCMR.

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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20140004316



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