IN THE CASE OF:	  

		BOARD DATE:	    24 September 2015

		DOCKET NUMBER:  AR20150002278 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

   a.  He was young, afraid, and away from home for the first time.  After he lost the vision in his left eye, all he wanted to do was go home.  He spoke with his commanding officer, but he just used the information against him knowing the applicant would be ineligible for Department of Veterans Affairs (VA) benefits and compensation. 

   b.  Being young, he took his feelings out on everyone around him.  He apologizes for his actions; however, he is now losing his sight in his right eye and soon will be unable to see at all.  He filed a claim with the VA in 2004 and was informed he was not eligible for treatment and compensation.  After many years of walking around with his head down, he found out he could request to have his discharge upgraded.

   c.  He was there when the U.S. Army needed him, now he is homeless and he needs his discharge upgraded in order to receive health care benefits and compensation before he loses sight in his right eye. 

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 22 May 1979, at nearly           21 years of age.  He completed training and he was awarded military occupational specialty 16D (HAWK Missile Crewman).

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 9 November 1979, for willfully disobeying a lawful order
* 16 April 1980, for signing a false official statement and for stealing a tire with rim
* 13 February 1981, for failing to go at the time prescribed to his appointed place of duty
* 13 May 1981, for failing to obey a lawful order and for wrongfully using provoking words
* 15 June 1981, for failing to go at the time prescribed to his appointed place of duty.

4.  On 20 November 1981, the applicant received a medical examination in conjunction with his separation under chapter 14, Army Regulation 635-200 (Personnel Separations Enlisted Personnel).  Medical documentation contained in his personnel records show the applicant was diagnosed with trauma damage to the left globe (eye) with recurrent headaches.  It was recommended the applicant receive further evaluation from ophthalmology and mental hygiene; however, it is noted the applicant was qualified for separation. 

5.  On 28 January 1982, the applicant received a command referred psychiatric evaluation and he was diagnosed with an adjustment disorder with mixed emotional features arising out of circumstances connected with his chapter 14 proceedings.  It was noted by the psychiatrist that the applicant met retention standards and had no psychiatric illness which warranted medical disposition or treatment.  The applicant was cleared for any and all administrative actions deemed appropriate by his command.

6.  His record contains a memorandum, completed by the executive officer, Battery A, 3rd Battalion (IHAWK), 68th Air Defense Artillery, Fort Bragg, NC, dated 29 January 1982, which shows the applicant was repeatedly counseled for issues such as:  disrespect, disobedience, tardiness, failing to pay debts, and being asleep on duty.

7.  On 3 February 1982, the applicant's immediate commander notified him of his intent to initiate separation action against the applicant in accordance with chapter 14 of Army Regulation 635-200 for repeated dereliction of duty and violation of the UCMJ.

8.  On 11 March 1982, the applicant acknowledged receipt of the commander's intent to separate him for misconduct.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by a board of officers and a personal appearance before the board.  He elected to submit a statement in his own behalf; however, none was found in the record.  He also waived representation by military counsel.

9.  The applicant indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.

10.  His record contains a DA Form 2496 (Disposition Form), issued by the Staff Judge Advocate, dated 19 March 1982, which states the applicant initially requested to have his case heard before a board of officers; however, the applicant subsequently waived the appearance and submitted no statements on his behalf.  Based on the evidence of record, a conclusion that further rehabilitative efforts would not produce a quality Soldier was supported and the administrative discharge proceedings were deemed legally sufficient.

11.  On 26 March 1982, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.
12.  The applicant was discharged on 6 April 1982.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  He completed 2 years, 10 months, and 6 days of net active service during this period with no time lost.

13.  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.

14.  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 at the time included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.

	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 meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is 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.  His request that his under other than honorable conditions discharge be upgraded was carefully considered and appears to be without merit.

2.  Notwithstanding the applicant's contention concerning the loss of vision in his left eye, records show the applicant was over 21 years of age at the time of his offenses.  There is insufficient evidence which indicates the applicant's loss of vision had any bearing on his conduct or that he was any less mature than other Soldiers of the same age who successfully completed their military service.  

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  His records show he received NJP under the provisions of Article 15 of the UCMJ on numerous occasions.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  The evidence does not support an upgrade to an honorable discharge or general under honorable conditions discharge.

5.  In addition, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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)                                         AR20150002278



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ABCMR Record of Proceedings (cont)                                         AR20150002278



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