IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140007198 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states that he was stationed in Germany and while in a bar he was accused of attempted theft.  Then, a fight ensued over a female.  He didn't understand what the individual was telling the police at the time and he didn't get the chance to tell his side of the story.  Subsequent to the incident, he was accused of disorderly conduct and being in possession of two U.S. Army Europe ration cards.  He adds that he thought he had lost his ration card, so he requested another one.

   a.  He states he was never afforded an opportunity to seek counseling and rehabilitation for alcohol and drug dependency issues, which were significant factors regarding his behavior during his military service.

   b.  He has completed numerous seminars for alcohol and drug awareness, therapeutic and social living, bible studies, and skill training.

   c.  He concludes by stating it has been a long time since his discharge and a change in the character of service of his discharge may allow him to receive veterans' benefits.

3.  The applicant provides copies of his enlistment and separation documents and 19 certificates.

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.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve on 20 May 1981 for a period of 6 years and that he further enlisted in the Regular Army on
9 July 1982 for a period of 2 years.

3.  Upon completion of training, he was awarded military occupational specialty 21G (Pershing Electrical Maintenance Specialist).  He was assigned overseas to Battery C, 1st Battalion, 41st Field Artillery, Germany, on 29 April 1982.

4.  On 27 December 1982, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ) for, on –

* 30 October 1982, by means of force, attempting to steal an unknown amount of money from a foreign national (Article 80, UCMJ)
* 4 December 1982, violating a lawful general regulation by possessing two ration cards (Article 92, UCMJ)
* 4 December 1982, being disorderly the military police station (Article 134, UCMJ)

5.  On 21 January 1983, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might –

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration (VA)
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged that he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the grade of E-1.

	d.  He was also advised that he could submit any statements he desired in his own behalf and he elected not to submit statements in his own behalf.

   e.  The applicant and his counsel placed their signatures on the document.

6.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

7.  On 4 February 1983, the separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed characterization of his service as under other than honorable conditions.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 February 1983 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, with an under other than honorable conditions characterization of service.  He completed 1 year, 7 months, and 8 days of net active service during this period.

9.  On 23 September 1985, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and voted to deny relief.

10.  A review of the applicant's available military service records failed to reveal any evidence that the applicant was alcohol or drug dependent.


11.  In support of his application the applicant provides 19 certificates that show he completed the –

* Jericho Drug & Alcohol Program, Basketball Tournament on 23 July 2001
* Basic Course in Nonviolent Conflict Resolution on 12 August 2001
* The Introductory Bible Study on 23 August 2001
* Unit Based Citizenship Program on 25 October 2001
* Thru the Bible Study on 13 November 2001
* Advanced Course in Nonviolent Conflict Resolution on 13 January 2002
* New Growth Alcohol and Other Drug Program on 2 July 2003
* Graterford's Flag Football League Championship on 30 March 2004
* Recovery House Therapeutic Community on 14 September 2005
* National Center for Construction Education and Research –

* Core Curricula on 13 January 2005
* Electrical Level One on 30 June 2005
* Residential Electrical I on 18 July 2006
* Electrical Level Two on 18 July 2006

* Operation Outward Reach on 28 April 2008
* Anger Management Training on 14 April 2009
* Violence Prevention Booster Series on 23 December 2010
* Thinking for a Change on 4 January 2011
* Gaudenzia – A New Beginning on 22 April 2013
* Victim Awareness on 25 February 2014

12.  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.  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.  Chapter 3, 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.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he was not afforded an opportunity to seek counseling and rehabilitation for alcohol and drug dependency issues; he has completed numerous seminars for alcohol and drug awareness, therapeutic and social living, bible studies, and skill training; and it has been a long time since his discharge, he has changed his life, and an upgrade of his discharge will allow him to receive veterans' benefits.

2.  There is no evidence of record that the applicant had drug and alcohol dependency issues during the period of service under review.  In any case, he could have referred himself for treatment.

3.  The evidence of record shows that court-martial charges were preferred against the applicant and he consulted with legal counsel.  At that time, he elected not to submit any statements in his own behalf.  Thus, the applicant was afforded an opportunity to make it known that he had drug and alcohol issues, but he failed to do so.  Thus, his contention to this Board that he was not afforded an opportunity to seek counseling/rehabilitation for alcohol and drug dependency issues appears disingenuous.
  
4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the reason for separation and characterization of service were appropriate and equitable.

5.  During the period of service under review, the applicant was charged with offenses punishable by a bad conduct or dishonorable discharge and he was reduced to private (E-1) prior to his discharge.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  The applicant's post-service achievements and conduct were considered.  However, his post-service conduct is insufficient as a basis for upgrading his discharge.

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the 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.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

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)                                         AR20140007198



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ABCMR Record of Proceedings (cont)                                         AR20140007198



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