IN THE CASE OF:
BOARD DATE: 23 October 2014
DOCKET NUMBER: AR20140007051
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 the basis for his request is to qualify for housing benefits through the Department of Veterans Affairs (VA).
3. The applicant provides a self-authored statement.
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 29 December 1980. His records show he completed basic combat and advanced individual training, and was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist). The highest rank/grade he attained while serving on active duty was private first class PFC)/E-3.
3. Available records indicate the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 occasions:
* on 26 October 1981, for disrespect toward a superior commissioned officer
* on 18 November 1982, for being drunk and disorderly
* on 14 April 1983, for being absent without authority from 0730 through 1630 on 1 April 1983
* on 9 May 1983,for wrongfully using provoking words
* on 29 July 1983, for wrongfully possessing less than 30 grams of marijuana
4. Available records show the applicant was absent without leave (AWOL) during the following periods:
* 10 April 1982 through 16 May 1982.
* 12 August 1983 through 16 August 1983
* 19 August 1983 through 28 August 1983
5. He was confined by military authority from 29 August through 14 September 1983.
6. On 30 August 1983, court-martial charges were preferred against him for failing to report to formation on 10 August 1983 and being AWOL during the periods 12 August through 16 August 1983 and 19 August through 28 August 1983.
7. On 9 September 1983, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provisions for the good of the service - in lieu of trial by court-martial.
8. In his request for discharge, he indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, 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.
9. On 9 September 1983, the applicant provided a self-authored statement in which he stated, in effect:
* his parents were having financial difficulties
* no one else in the family was able to help
* as a result of receiving nonjudicial punishments, he had no money to send home
10. On 15 September 1983, the separation authority approved his request for discharge in lieu of court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. On 3 October 1983, he was discharged accordingly.
11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 6 months, and 27 days of creditable active military service. He had 51 days of time lost for being AWOL and 17 days of time lost for military confinement. His DD Form 214 shows in:
* item 24 (Character of Service): "Under Other than Honorable Conditions"
* item 25 (Separation Authority): "AR 635-200, Chapter 10"
* item 28 (Narrative Reason for Separation): "For the good of the service - in lieu of trial by court-martial"
12. The applicant provides a one-page, self-authored statement dated 9 March 2014, in which he states, in effect:
* he enlisted in the Army in 1980 with the intent to serve 3 years
* he received an under other than honorable conditions discharge due to a few problems
* up to this point he has never asked the government for help; he is now in need of housing and is seeking VA assistance
* he currently has no home and is living with his daughter; he is married and has a son
13. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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.
b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldiers service has generally met standards of acceptable conduct and duty performance.
c. 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 be upgraded was carefully considered; however, there was insufficient evidence to support his request.
2. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process.
3. The applicant's record reflects a history of indiscipline, which includes disorderly, disrespectful and disobedient conduct; possession of marijuana; and a total of 68 days of time lost. The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge. Accordingly, there is no basis upon which to grant the applicant an honorable or a general discharge.
4. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans 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 veterans benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for housing or other VA 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) AR20140007051
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