IN THE CASE OF:	   

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140010341 


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 to honorable.

2.  The applicant states:

	a.  He is providing paperwork that shows his misconduct was not considered willful and persistent.

	b.  He has documentation of a hearing and a letter from the Department of Veterans Affairs (VA) that states his discharge was upgraded, but he never received an upgraded DD Form 214 (Certificate of Release or Discharge from Active Duty) or DD Form 215 (Correction to DD Form 214).

3.  The applicant provides:

* transcript of a VA hearing held on 25 June 1981
* VA administrative decision for unemployment compensation purposes, dated 15 July 1981
* VA letter, dated 17 July 1981
* VA Form 21-4138 (Statement in Support of Claim), dated 4 October 2013
* DD Form 214



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 15 September 1976 for 4 years.  He completed his training and was awarded military occupational specialty 13E (cannon fire direction specialist).

3.  On 19 February 1980, charges were preferred against the applicant for making a false official statement and larceny of U.S. Government property.

4.  On 6 June 1980, he consulted with counsel and requested 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 acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or under conditions other than honorable and given a discharge under other than honorable conditions, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.

5.  On 11 June 1980, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge under other than honorable conditions.

6.  On 24 June 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 3 years, 9 months, and 7 days of creditable active service with 3 days of lost time.  His service was characterized as under other than honorable conditions.
7.  He provided the following VA documentation:

	a.  a transcript of a hearing held on 25 June 1981 to determine whether his discharge from the Army was under conditions other than dishonorable;

	b.  an administrative decision for unemployment compensation purposes, dated 15 July 1981, which shows the VA determined the charge of theft of government property was not considered willful and persistent misconduct in view of the circumstances surrounding the incident.  The VA concluded his discharge from the Army was deemed to be a discharge issued under honorable conditions;

	c.  a letter, dated 17 July 1981, which states the evidence of record shows his discharge from the Army on 24 June 1980 was issued under honorable conditions and he had established entitlement to VA benefits; and

	d.  a letter from a Minnesota Veterans Service Office which states the VA granted a favorable decision and the applicant could apply for VA dental benefits and Veterans' Group Life Insurance.

8.  On 10 June 1982, the Army Discharge Review Board (ADRB) denied his request for an honorable discharge.

9.  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.  The applicant's contentions were carefully considered.  However, the documentation he provided pertains to VA benefits.  It appears that in July 1981 the VA determined his discharge from the Army on 24 June 1980 was deemed to be a discharge issued under honorable conditions for unemployment compensation purposes.  There is no evidence of record and he provided no evidence that shows his discharge was upgraded to honorable or general under honorable conditions by the Army.  In June 1982, the ADRB denied his request for a discharge upgrade.

2.  His record of service included serious offenses for which a court-martial was recommended.  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.

3.  His voluntary request for discharge 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 in conformance 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.

4.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20140010341



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140010341



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1