BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140005336 


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, correction of his DD Form 214 (Report of Separation from Active Duty) by showing his under other than honorable conditions (UOTHC) discharge was upgraded to general, under honorable conditions.
   
2.  The applicant states he was told by the recruiter that there were no American Indians in the armed forces because "we won that war."  He was told that in today's Army, he would be a Negro.  Later he learned that this was false.  He wants an upgrade of his discharge so he can obtain medical care from the Department of Veterans Affairs (VA).  He is currently disabled due to ongoing leg injuries and a lack of treatment during the crucial stages of degeneration of his leg.  He is unable to drive or sit for long periods of time which limits his activities.

3.  The applicant provides copies of:

* Letters from his physician, dated 7 September 1977 and 26 April 1978
* DD Form 214
* Letter from the VA, undated, with enclosure

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 12 September 1977, the applicant enlisted in the Regular Army.  He completed initial training as a motor transport operator.

3.  On 29 March 1978, the applicant departed Fort Dix, NJ for duty in the Federal Republic of Germany (FRG).  On 27 April 1978, he was absent without leave (AWOL) from the 21st Replacement Company, FRG.

4.  On 1 June 1978, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period from on or about 27 April to 31 May 1978 (34 days).

5.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, he could receive a UOTHC discharge which 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.  In his request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 29 June 1978, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 12 July 1978, the applicant was discharged accordingly.  He had completed a total of 8 months and 27 days of creditable active service and accrued 34 days of time lost.
8.  On 18 March 1986, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

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

	a.  Chapter 10 of that regulation 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	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.  

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

11.  The letters provided by the applicant indicate that he had suffered from osteochrondritis dissecans of his right knee since about 13 years of age.  It appears that more recently, he has attempted to qualify for unemployment compensation based on his military service but was denied due to his characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his discharge was upgraded to general, under honorable conditions because he wants to obtain medical care from the VA.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, he could receive a UOTHC discharge which 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.

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 and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

6.  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)                                         AR20140005336



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ABCMR Record of Proceedings (cont)                                         AR20140005336



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