IN THE CASE OF:    

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140016446 


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, in effect, correction of his military records to show his under other than honorable conditions (UOTHC) discharge upgraded to honorable.
   
2.  The applicant states he wants his discharge upgraded so he can obtain Department of Veterans Affairs (VA) benefits.  He contends that such an upgrade is warranted due to the length of his time out of the service and because his character has changed.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* Excelsior Medical Clinic Progress Notes, dated 4 September 2014
* Four support statements from his pastor, mother, nephew, and a retired 
U. S. Army colonel 

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 9 May 1978, the applicant enlisted in the Regular Army.  He completed his initial training as a light wheeled vehicle/power generation mechanic.

3.  In 1978, the applicant completed the Basic Airborne Course at Fort Benning, Georgia.

4.  On 6 November 1978, the applicant was assigned to Fort Bragg, North Carolina.

5.  On 1 October 1979, the applicant was advanced to specialist four, pay grade E-4.

6.  A DA Form 2-1 (Personnel Qualification Record - Part II) shows the applicant’s lost time:

* Absent without leave (AWOL):  24 to 29 April 1981 (6 days)
* AWOL:  22 May to 4 June 1981 (14 days)
* Confinement:  18 to 20 August 1981 (3 days)
* AWOL:  19 to 25 October 1981 (7 days)
* AWOL:  3 November 1981 to 10 February 1982 (100 days)

7.   On 26 November 1986, charges were preferred under the Uniform Code of Military Justice for being AWOL from on or about 3 November 1981 to on or about 11 February 1982.

8.  On 24 February 1982, the applicant underwent a mental status evaluation.  His behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible.  He had the capacity to understand and participate in separation proceedings.

9.  On or about 24 February 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 4 March 1982, the applicant's commander at the U.S. Army Personnel Control Facility interviewed him and prepared a statement in support of the separation packet.  The commander said the applicant departed AWOL because he could never seem to please his previous unit commander and was constantly in trouble for violating Army rules and regulations.  The applicant stated he would only get into more trouble if he returned to his former unit and that he wanted nothing more to do with the Army if he were forced to remain and serve.  The commander noted the applicant lacked rehabilitation initiative and supported his request for discharge under the provisions of chapter 10, Army Regulation 635-200.

12.  On 22 March 1982, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  On 15 April 1982, the applicant was discharged accordingly.  He had completed 3 years and 7 months of military service and accrued 130 days of time lost due to AWOL and confinement.

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

14.  The applicant provided the following evidence to support his application.

   a.  In a letter dated in 2008, a retired Army colonel stated he had known the applicant for about 9 years and recommended him for a position of trust and security.  He identified the applicant as a person who had high morals, integrity, compassion, and honesty.  These traits transcended into his professional life and were quite evident in his church and community environment.  The letter indicates that the applicant was being recommended for employment.

   b.  In a letter dated 7 September 2014, the applicant’s pastor stated that he was a fine gentleman.  He is very cooperative and knows how to get along with others.  He is very kind and will do anything to help his fellow man.  He is still having problems resulting from a stroke he had about 10 years ago, but any help that can be given to him would be greatly appreciated.

   c.  In a letter dated 8 September 2014, the applicant’s mother stated that he is a caring and thoughtful son who has supported his family all of his life until he had a stroke.  She begs that he be granted any help that can be given to upgrade his discharge.

   d.  In a letter dated 8 September 2014, the applicant’s nephew stated that the applicant was in need of medical help and that the VA was the best place for him to acquire this help.  He argues that the applicant was always a person who would help another person and not just family members.

	e.  The medical evidence shows he was initially treated for a cerebral embolism with cerebral infarction in 2004 and he continues to receive medical care for it as well as for hypertension and aphasia due to cerebrovascular disease and complications from these medical conditions.  

15.  Army Regulation 635-200 (Personnel Separations):

	a.  Chapter 10 of that regulation provides a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his UOTHC discharge upgraded based on the length of his time out of the service and because his personal character post service has changed.  He contends that he needs this upgrade in order to obtain VA benefits.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts in this case.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His multiple periods of lost time rendered his service unsatisfactory.  The applicant’s evidence of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.  

4.  The applicant's desire to obtain veterans’ medical benefits is not justification for an upgrade of an individual's discharge nor does the Board upgrade discharges solely for the purpose of obtaining Federal or State veterans' benefits. 

5.  In view of the foregoing, the applicant's request to upgrade his administrative discharge should be denied.

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)                                         AR20110020309



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016446



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1