BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140012687 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states he was hit by a car on post by four German soldiers.  He suffered neck and back injuries which continue to prevent him from having gainful employment.  It is unjust because his current discharge prohibits gainful employment and also prohibits him from receiving appropriate medical care for injuries he received in service.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 1 April 1980.

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 18 February 1977, he enlisted in the Regular Army for 3 years.  

3.  On 13 August 1979, he received nonjudicial punishment for being:

* absent without leave (AWOL) from 9 - 10 May 1979
* AWOL from 27 - 28 June 1979
* AWOL from 29 June - 24 July 1979
* AWOL from 9 - 10 August 1979

4.  The applicant appealed his punishment and did not submit matters for consideration by superior authority.  On 16 August 1979, a captain of the Judge Advocate General's Corps reviewed the proceedings and determined they were conducted in accordance with law and regulations and the punishment imposed was not unjust or disproportionate to the offenses.  On 20 August 1979, the applicant's appeal was denied.

5.  DA Forms 4187 (Personnel Action) show the following changes in his status:

* 7 June 1979 - present for duty to AWOL
* 9 June 1979 - AWOL to civilian confinement
* 27 June 1979 - civilian confinement to AWOL
* 29 June 1979 - AWOL to present for duty

6.  On 22 August 1979, he departed AWOL while he was pending charges from a previous desertion.  He returned to military control on 11 October 1979.

7.  There was no charge sheet in his Military Personnel Records Jacket and his separation processing package was not available for review.

8.  On 1 April 1980, the applicant was discharged under the provisions of 
chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service.  He completed 2 years, 10 months, and 
4 days of active service that was characterized as under other than honorable conditions.  He had 99 days of time lost.

9.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

11.  Army Regulation 15-185 (ABCMR) 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.

12.  Code of Federal Regulations Title 38, Section 3.12 (a) provides for an administrative determination by the Department of Veterans Affairs (VA) that an "other than honorable discharge was issued under conditions other than dishonorable" to establish basic eligibility for VA benefits.

13.  Title 38, United States Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  


DISCUSSION AND CONCLUSIONS:

1.  He contends he suffered neck and back injuries when he was hit by a car.  His discharge now prevents him from receiving medical care for these injuries.  However, he has provided no substantive evidence to support his contention.  

2.  Although his separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  He would have been required to consult with defense counsel and to have voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.  

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and the type of discharge and the reason for separation were appropriate.

4.  The applicant's expressed need to obtain health care is noted.  However, the ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for benefits.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

5.  The VA, in accordance with its own policies and regulations, may make an administrative decision as to whether an individual's period of service is considered as under other than dishonorable conditions for the purpose of VA benefits.  This administrative decision does not establish error or injustice in the Army's characterization of the applicant's service.

6.  He had multiple periods of AWOL and his last period of AWOL occurred while he was pending charges from a previous period of AWOL.  He had a total of 
99 days of time lost.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his under other than honorable conditions discharge to either 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 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)                                         AR20140012687



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ABCMR Record of Proceedings (cont)                                         AR20140012687



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