IN THE CASE OF:
BOARD DATE: 29 January 2015
DOCKET NUMBER: AR20140009865
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 discharge under other than honorable conditions.
2. The applicant states:
* the penalty for his mistake is too severe for his offense
* he can't get Department of Veterans Affairs (VA) healthcare
* he is homeless
* he is attempting to restore his life so he can be a productive member of society
3. The applicant provides no additional evidence.
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 18 May 1979 for 3 years. He completed his training and was awarded military occupational specialty 57E (laundry and bath specialist).
3. His records are void of the specific facts and circumstances surrounding his discharge. However, his Army Discharge Review Board (ADRB) Proceedings state:
a. On 30 June 1980, charges were preferred against him for being absent without leave from 10 September 1979 to 25 June 1980.
b. After consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. He elected not to submit a statement in his own behalf.
c. On 11 August 1980, the separation authority approved the applicant's request for discharge and directed the issuance of a discharge under other than honorable conditions.
4. On 20 August 1980, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 5 months and 18 days of creditable active service with 289 days of lost time. His service was characterized as under other than honorable conditions.
5. In 1983, the ADRB denied his request for a general discharge.
6. 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. 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.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends he can't get VA healthcare, a discharge is not changed for the purpose of obtaining VA benefits. Each request is individually considered based on the evidence presented.
2. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.
3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
4. His contention the penalty for his mistake is too severe for his offense was carefully considered. However, his brief record of service included 289 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.
5. In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant an upgrade of his discharge.
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 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) AR20140009865
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ABCMR Record of Proceedings (cont) AR20140009865
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