IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013080 


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 (UOTHC) to a general discharge.

2.  The applicant states:

	a.  The original charges against him were overreaching and unjust.  Although he was guilty of a number of lesser-included charges, he was not guilty of the most serious charges.  Nevertheless, he saw no choice other than to accept a discharge.

	b.  He is now suffering from health problems related to a fall while serving on active duty.  He is seeking part-time work with the city school system due to his health issues.  He believes his discharge unjustly disqualifies him for Government employment as well as Department of Veterans Affairs (VA) treatment.

3.  The applicant provides:

* medical records
* x-ray report
* DD Form 214 (Certificate of Release or Discharge from Active Duty)



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 21 October 1976 for 4 years.  He completed his training and was awarded military occupational specialty (MOS) 98G (voice interceptor), MOS 76X (subsistence supply specialist), and MOS 57F (Graves Registration Specialist).  He remained on active duty through continuous reenlistments.

3.  He provided service medical records, dated 8 June 1990 and 13 November 1990, which show he was treated for back pain/muscle spasm.  One record states he injured his back from a fall while working.

4.  His charge sheet is not available.  However, his request for discharge shows he was charged with:

* illegal transfer of goods (two specifications)
* larceny of U.S. Government property
* obstruction of justice

5.  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 dishonorable discharge.  He indicated he understood he might be discharged UOTHC and given a discharge UOTHC, 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 UOTHC.  He elected not to submit a statement in his own behalf.

6.  On 1 February 1991, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a discharge UOTHC.

7.  On 4 February 1991, he signed a Medical Examination for Separation/Retirement Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a medical authority at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  His medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.

8.  On 13 February 1991, 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 14 years, 3 months, and 23 days of creditable active service.  His service was characterized as UOTHC.

9.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  He also provided an x-ray report of his right hip, dated 2 July 2014.  The impression states, "Mild to moderate degenerative changes noted of the inferior medial aspect of the right hip joint."

11.  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 under the Uniform Code of Military Justice includes a punitive discharge may 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.  A discharge UOTHC is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	b.  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 contention that he was not guilty of the most serious charges relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial/appellate process.  However, it appears he voluntarily requested discharge in lieu of trial by court-martial.

2.  He contends his discharge disqualifies him from employment.  However, a discharge is not changed for the purpose of enhancing employment opportunities. 

3.  He states his discharge disqualifies him for VA treatment.  However, the character of a discharge is not changed solely for the purpose of qualifying an applicant for VA benefits.  Each application is considered based on its individual merits.

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

5.  His record of service during his last enlistment included serious offenses for which court-martial charges were preferred against him.  As a result, his record of service was not satisfactory.

6.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140013080



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ABCMR Record of Proceedings (cont)                                         AR20140013080



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