BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140011378 


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 (UOTHC) discharge to a general or an honorable discharge.

2.  The applicant states, in effect, his UOTHC discharge should be upgraded because he served two previous honorable terms from 10 July 1973 through 9 July 1975 and from 14 May 1981 through 12 September 1983.  For 31 years, he has been struggling with this discharge and having received no benefits from the Department of Veterans Affairs (VA).  He is asking for a pardon from this imprisonment.

3.  The applicant provides copies of the following:

* VA Certificate of Eligibility for Home and Farm Loans
* DD Form 4c (Enlistment or Reenlistment Agreement (Continuation Sheet))
* Permanent Orders (PO) Number 24-12
* DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Noncommissioned Officer (NCO) Academy diploma
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 12 April 1983
* Certificate of Appreciation
* Certificate of Achievement
* Commendation Certificate
* Mini Cadre Training Course certificate
* U.S. Government Certificate of Recognition
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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 10 July 1973.  He was awarded military occupational specialty (MOS) 94B (cook).  He was honorably released from active duty on 9 July 1975 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He was issued a DD Form 214 (Report of Separation from Active Duty) crediting him with completing 2 years of active service.

3.  He provided a copy of a VA Certificate of Eligibility for Home and Farm Loans, issued on 23 July 1975, showing his entitlement to loan guaranty benefits administered by the VA.

4.  He reenlisted in the USAR on 9 March 1977 for 6 years.  He enlisted in the RA on 17 May 1977, in pay grade E-4, for 4 years.  He was awarded MOS 75C (personnel management specialist).  He was promoted to pay grade E-5 on 12 January 1979.

5.  PO Number 24-12, dated 5 June 1980, awarded him the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity for the period of service from 17 May 1977 through 16 May 1980.

6.  He was honorably discharged on 13 May 1981 for the purpose of immediate reenlistment.  He was not issued a DD Form 214.

7.  He reenlisted in the RA on 14 May 1981 for 3 years.  He successfully completed the NCO Academy on 4 February 1983.

8.  On 1 March 1982, he was convicted by a summary court-martial of one specification of willfully disobeying a lawful order from his superior NCO.  He was sentenced to a suspended reduction to pay grade E-4 and a forfeiture of $568.00 pay.  The convening authority ordered the sentence executed on the same day.

9.  On 11 February 1983, a DD Form 458 (Charge Sheet) was completed by the Commander, 101st Adjutant General Company, 101st Airborne Division, Fort Campbell, KY.  The applicant was charged with one specification each of the following:

* attempting to wrongfully appropriate U.S. currency of a value of $520.00 from 1 October 1982 to about 1 February 1983
* stealing U.S. currency of a value in excess of $560.00 by accepting payment of separate rations knowing he was not entitled to receive the same from 30 September 1982 to about 1 February 1983
* stealing food from the U.S. Army mess facilities of a value of $80.00 by utilizing meal cards knowing he was not entitled to the use of said meal cards from 29 July 1982 to about 30 November 1982

10.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  An Application for Discharge for the Good of the Service Under the Provisions of Army Regulation (AR) 635-200 (Personnel Separations, Enlisted Personnel) memorandum, dated 3 March 1983, wherein the applicant's commander was notified of the applicant's submission of a request for discharge for the good of the service.

   b.  An Approval of Discharge Under the Provisions of Chapter 10,       AR 635-200 memorandum, dated 7 April 1983, wherein the separation authority approved the applicant's request with an UOTHC discharge.

   c.  A DD Form 214 which shows he was discharged in pay grade E-1 on 13 April 1983.  He was credited with completing 1 year, 10 months, and 29 days of active service.  His service was characterized as UOTHC.

11.  On 30 December 1985, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  He also provided copies of the following:

* Certificate of Appreciation issued for his exceptionally meritorious achievement in the performance of his duties from 19 August through 13 November 1986 as a member of the Vanguard Alpha Food Service Team
* Certificate of Achievement, dated 28 November 1989, issued for his significant contribution in support of the overall effort to prepare the battalion dining facility for Thanksgiving Day, 1989
* Commendation Certificate, dated 18 March 1991, issued for his great contribution for the success of a mission
* Mini Cadre Training Course certificate, dated 19 March 1991, issued for his successfully completion of the course
* U.S. Government Certificate of Recognition, dated 28 September 2000, issued in recognition of his 15 years of service

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances surrounding his discharge; however, it appears after court-martial charges were preferred against him and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his UOTHC discharge.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

4.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor that would warrant special recognition.  His previous periods of honorable service and post-service accomplishments were noted.  However, those periods do not mitigate the gravity of the offenses for which he was charged in 1983.  As a result, there is no evidentiary basis upon which to support his contentions and the requested relief.

5.  His desire to have his discharge upgraded so that he can qualify for benefits from the VA.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for burial, medical, and/or other benefits administered by the VA. The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20140011378





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ABCMR Record of Proceedings (cont)                                         AR20140011378



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