IN THE CASE OF:  	

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140006280 


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 a discharge upgrade.

2.  The applicant states he received an honorable discharge for his first term of active service, has been trouble-free since being given the discharge under other than honorable conditions, and believed he had been already upgraded to honorable because he had been receiving medical care and a pension from the Department of Veterans Affairs (VA).  He only realized his separation was still characterized as under other than honorable when the VA informed him they needed to evaluate his claim for compensation based upon his other than honorable discharge.

3.  The applicant provides two DD Forms 214 (Report of Separation from Active Duty), the first page of a letter from the VA, a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), and a VA Form 21-0845 (Authorization to Disclose Personal Information to a Third Party).

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.  After a prior period of service, the applicant again enlisted in the Regular Army on 21 September 1976.  He had completed basic combat and advanced individual training during the prior enlistment and was awarded military occupational specialty 31M (Multi-channel Transmission Systems Operator).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  The applicant’s discharge packet is not available.  However, there is sufficient evidence for a fair and impartial review.   His DD Form 214 shows he was discharged on 4 August 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, under conditions other than honorable.  He completed a total of 2 years, 11 months, and 29 days of creditable active military service with 38 days of lost time due to military confinement.

4.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter
10 provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

6.  Army Regulation 635-200, paragraph 3-7a, provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

7.  Army Regulation 635-200, 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 contention that his discharge should be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  Lacking evidence to the contrary, the applicant’s request for separation for the good of the service to avoid trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

3.  There is no evidence the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR.  Therefore, 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)                                         AR20140006280





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ABCMR Record of Proceedings (cont)                                         AR20140006280



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