IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140008561 


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, that his discharge under other than honorable conditions be upgraded to a general discharge and that his service record be amended to reflect all of the campaigns and unit citations he is authorized.

2.  The applicant states he is being unjustly barred from medical treatment for injuries sustained while on active duty as authorized by chapter 17 of Title 38, U.S. Code (USC), and Title 38, Code of Federal Regulations, section 3.360(a) (38 CFR 3.360(a)).

3.  The applicant provides:

* a statement, dated 15 December 1992, from the Department of Veterans Affairs (VA)
* an entitlement document from the VA
* one page from his DA Form 2-1 (Personnel Qualification Record)

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 11 September 1989, he enlisted in the Regular Army for 3 years.  He was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 
6th Infantry, Germany on 13 February 1990.

3.  On 14 February 1992, court-martial charges were preferred against the applicant for:

* three specifications of failure to obey a lawful general regulation
* larceny
* assault
* two specifications of forgery

4.  On 16 March 1992, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, in lieu of trial by court-martial.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offenses with which he was charged
* afforded the opportunity to speak with counsel prior to making his request

5.  An apparent second page of his request is missing.  The second page would have contained the applicant's signature.  

6.  The applicant's commander and one intermediate commander recommended his request for discharge be approved only if he made complete restitution to the person he committed forgery against and that he receive an under other than honorable conditions discharge.

7.  His senior intermediate commander recommended his request for discharge be approved and that he receive an under other than honorable conditions discharge.

8.  On 18 March 1992, trial counsel stated the applicant would make restitution on 19 March 1992.

9.  On 31 March 1992, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial.  He directed his reduction to private/pay grade E-1 and that he receive an under other than honorable conditions discharge.

10.  On 27 April 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 
2 years, 7 months, and 17 days of net active service that was characterized as under other than honorable conditions.  His DD Form 214 shows he was awarded the:

* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Pistol Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar

11.  Item 9 (Awards, Decorations and Campaigns) of his DA Form 2-1 shows he was awarded the Expert Marksmanship Qualification Badge with Grenade Bar on 26 October 1989.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 3 December 1996, the ADRB reviewed and denied the applicant's request for an upgrade of his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and properly characterized as under other than honorable conditions.

13.  The applicant applied to the ABCMR for an upgrade his discharge to honorable.  On 29 January 1997, the ABCMR reviewed and denied his request for an upgrade of his discharge to honorable.

14.  A review of approved unit awards on the U.S. Army Human Resources Command website did not show the applicant was assigned to HHC, 
2nd Battalion, 6th Infantry during any period the unit was authorized a unit award. 

15.  38 CFR 3.360(a) states that the health-care and related benefits authorized by chapter 17 of title 38 USC shall be provided to certain former service persons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty.

16.  Army Regulation 15-185 (ABCMRs) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its 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.

17.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 states 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.  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.  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.  He was not assigned to HHC, 2nd Battalion, 6th Infantry during any period for which the unit was authorized a unit award.  Therefore, there are no unit awards to be added to his military records.

2.  His award of the Expert Marksmanship Qualification Badge with Grenade Bar shown on his DA Form 2-1 should be added to his DD Form 214.

3.  Although the second page of his request for discharge was not available it is presumed he signed it showing he was:

* advised he could be issued an under other than honorable conditions discharge
* advised he could submit any statements he desired in his own behalf

4.  When he signed his request for discharge he would have acknowledged he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws


5.  He was charged with an offense punishable by a punitive discharge.  He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  In the absence of evidence to the contrary it presumed his request for discharge was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

7.  Due to the seriousness of the charges he admitted guilt to his service is determined to be unsatisfactory.  Therefore, there is no basis on which to upgrade his discharge to general, under honorable conditions.

8.  Medical benefits under chapter 17 of Title 38 USC as stated in 38 CFR 3.360(a) are provided by the VA.  Determinations of eligibility are made by the VA and are not within the jurisdiction of the ABCMR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 with a separation date of 27 April 1992 by:

* deleting the Expert Marksmanship Qualification Badge with Pistol Bar
* adding the Expert Marksmanship Qualification Badge with Pistol and Grenade Bars



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to general, under honorable conditions.  



      _______ _   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)                                         AR20140008561



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ABCMR Record of Proceedings (cont)                                         AR20140008561



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