IN THE CASE OF:  

		BOARD DATE:  30 July 2015

		DOCKET NUMBER:  AR20150000241


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 by upgrading his under conditions other than honorable (UCOTH) discharge to a general, under honorable conditions.
   
2.  The applicant states he did not understand at the time what he was signing.  He was flown out of the Federal Republic of Germany (FRG) with a serious head injury.  He never would have agreed to a discharge without any benefits.  He served for 2 years and 9 months as a proud Soldier.  He received awards and fine reviews.

3.  The applicant indicates he provided a copy of an order of merit; however, it was not attached to the application.

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 28 October 1976, the applicant enlisted in the Regular Army.  He completed his initial training as an infantryman.

3.  On 23 February 1977, the applicant departed Fort Sill, Oklahoma, for duty in the FRG.

4.  A Standard Form 513 (Clinical Record – Consultation Sheet, dated 27 April 1978, states the applicant had been using heroin since January 1978 and was experiencing mild withdrawal for the previous 5 days.  He desired detoxification and rehabilitation.  He was admitted to the detoxification ward and was enrolled in the alcohol drug abuse program that same day.

5.  The applicant accepted the following nonjudicial punishment (NJP):

	a.  On 13 October 1978, for violation of Article 80, Uniform Code of Military Justice (UCMJ) for attempting to steal cash from another person; and for violation of Article 134, UCMJ, for the wrongful possession of marijuana in the hashish form.

	b.  On 24 January 1979, for violation of Article 86, UCMJ, for being absent without leave (AWOL) during 5-11 December 1978; and for violation of Article 134 for the wrongful possession of 50 grams, more or less, of marijuana in the hashish form.

6.  There is no documentation in the applicant’s military records showing what charges were preferred under the UCMJ.

7.  On 25 June 1979, 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. 

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges 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.

9.  On 3 July 1979, the brigade commander stated in his indorsement that the applicant had been charged with offenses concerning larceny and housebreaking.

10.  On 30 July 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge certificate under other than honorable conditions.

11.  On 2 August 1979, the applicant underwent a medical examination for the purpose of separation.  The record of this examination shows his head, face, neck, and scalp were normal.  The only physical defect noted was a possibility of flat feet.  He was found qualified for administrative discharge.

12.  On 9 August 1979, the applicant was discharged accordingly.  He had completed a total of 2 years, 9 months and 6 days of creditable active duty military service.

13.  On 9 October 1980, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

14.  Army Regulation 635-200:

	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 trial by court-martial.  A discharge under other than honorable conditions was 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his UCOTH discharge was upgraded to general, under honorable conditions because did not understand at the time was he was signing and had been flown out of the FRG with a serious head injury.

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 of the 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 misconduct and lost time rendered his service unsatisfactory.

4.  The applicant’s assertion that he did not understand what type of discharge he received is without merit.  He was afforded legal counsel who informed him of the reasons for his discharge and the possible effects of such a discharge.  Furthermore, there is no documentary evidence in his military records showing he suffered from a serious head injury at the time.

5.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

6.  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



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ABCMR Record of Proceedings (cont)                                         AR20150000241



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