BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140013587 


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:

	a.  an upgrade of his general discharge to honorable and

	b.  entitlement to the Montgomery GI Bill (MGIB).

2.  The applicant states:

* he was discharged for misconduct
* he wants to better his life for himself and his child
* he wants to attend school using the MGIB
* his discharge is affecting his ability to use the MGIB
* he would like to apply for benefits (apparently he means Department of Veterans Affairs (VA) benefits)
* it's been 23 years since he was discharged due to mental stress and illness

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 15 June 1988 for 4 years and he trained as a cannon crewmember.

3.  A DD Form 2366 (Veterans' Educational Assistance Act of 1984 (GI Bill)) shows he was automatically enrolled in the MGIB effective 17 June 1988.  This form states "I must receive an honorable discharge for service which established entitlement to the GI Bill of 1984."

4.  In April 1991, nonjudicial punishment (NJP) was imposed against him for stealing personal property.

5.  In August 1991, NJP was imposed against him for assaulting a female (two specifications), disobeying a lawful command, disobeying a lawful order, and treating a noncommissioned officer with contempt.

6.  On 12 October 1991, a bar to reenlistment was imposed against him.

7.  On 18 October 1991, he was notified of his pending separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  The unit commander cited the applicant's two NJPs.

8.  On 23 October 1991, he consulted with counsel.  He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected not to submit a statement in his own behalf.

9.  On 29 October 1991, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  On 6 November 1991, he was discharged under honorable conditions (general) for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 3 years, 4 months, and 22 days of creditable active service.

11.  There is no evidence of record which shows he was diagnosed with any mental health condition prior to his discharge.

12.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The issuance of 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he wants his discharge upgraded so he can apply for VA benefits.  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.

2.  Although he contends it's been 23 years since he was discharged, the passage of time is normally not a basis for upgrading a discharge.

3.  He contends he was discharged due to mental stress and illness.  However, there is no evidence of record and he provided no evidence which shows he was diagnosed with any mental health condition prior to his discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  Since a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, the fact that he was given a general discharge under honorable conditions was generous.

6.  His record of service included two NJPs.  As a result, his record of service was not so meritorious as to warrant an honorable discharge.

7.  Since the applicant did not receive an honorable discharge, he is not entitled to the MGIB in accordance with his DD Form 2366.

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)                                         AR20140013587



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ABCMR Record of Proceedings (cont)                                         AR20140013587



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