IN THE CASE OF:  

		BOARD DATE:  2 April 2015

		DOCKET NUMBER:  AR20140014841 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states he had a good military record.  He was discharged while dealing with a civilian affair.  He would like his discharge upgraded in the interests of justice and so he can receive medical benefits, etc.

3.  The applicant provides a copy of his 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 January 1977.  He held military occupational specialty 19E (M48-M60 Armor Crewman).

3.  The highest rank he attained while on active duty was private two/E-2.

4.  12 June 1979, the applicant's immediate commander notified him, then in the Calcasieu Parish Jail in Lake Charles, Louisiana, that he was being recommended for discharge under the provisions of Army Regulation (AR) 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct.  The applicant had been tried by a civil court and found guilty of armed robbery and sentenced to 15 years hard labor without benefit of parole.  He advised the applicant of his rights.  There is no available record of the applicant's acknowledgment or his response.

5.   His chain of command recommended approval of the discharge. 

6.  On 1 August 1979, the separation authority approved the discharge and directed he receive a UOTHC discharge.

7.  On 19 November 1979, he was discharged accordingly.  He received a UOTHC discharge.  He had completed 10 months and 21 days of net active service his period.

8.  On 29 November 1996, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7a states 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 states 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 evidence of record shows he was discharged for misconduct.  His commander reported he had been tried by a civil court and found guilty of armed robbery.  Accordingly, his chain of command initiated separation action against him.

2.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable based on the facts of the case.

3.  In view of the foregoing, there is no basis for granting the requested relief.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records for the purpose of establishing eligibility for benefits from another agency.  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 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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20140014841



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