Search Decisions

Decision Text

ARMY | BCMR | CY2015 | 20150003166
Original file (20150003166.txt) Auto-classification: Denied

		IN THE CASE OF:    

		BOARD DATE:  15 October 2015	  

		DOCKET NUMBER:  AR20150003166 


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 an upgrade of his service characterization.  

2.  The applicant states that following his deployment to Iraq, he made the mistake of going to a party and doing drugs with other service members who he should not have been associating with at the time.  This caused him to get into trouble.  

	a.  His characterization of service should be upgraded because of his dedication to the United States Armed Forces.  He fought for his country.  He is a veteran of Desert Shield and Desert Storm and he is proud of his service.  He has a 17 year-old son serving proudly in the U.S. Army because of the lessons he taught him from the mistakes he made.  He is very active in his community, church, and school.  He has been working diligently with the children teaching them right from wrong and how important education is for them.  

	b.  He thinks he deserves an upgrade because of his commitment to the Army.  He is sick now and needs help from the Department of Veterans Affairs (VA).  He paid the price and lost a lot of his benefits because of his mistake.  If he could go back and change the past he would do it differently.  He has been clean and sober since his discharge and he encourages the children to whom he ministers to stay away from drugs and alcohol because it can and will destroy a person's life.  God gave him a second chance and he is praying that the VA will give him a second chance. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a VA Form 21-4138 (Statement in Support of Claim).

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 19 January 1989 and held military occupational specialty 74C (Telecommunications Operator-Maintainer).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Saudi Arabia from 7 September 1990 to 3 April 1991.

4.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record does contain a DD Form 214 that shows he was discharged from the Army on 1 July 1993, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and he received an under other than honorable conditions discharge.  

5.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  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.

	b.  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.  

	c.  Chapter 10 provides that an individual who has committed an offense or offenses, the punishment for which, under the UCMJ and the Manual for Courts-Martial, United States, including a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 

	d.  Chapter 10 of this regulation further states commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be given to an individual who was discharged for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his character of service should be upgraded to honorable on the basis that he has been dedicated to the Army and because he would like to have access to VA benefits.  

2.  His record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged for the good of the service on 14 March 1973 under the provisions of Army Regulation 635-200, chapter 10, and he received an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army for the good of the service.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment.  Absent evidence to the contrary, regularity must be presumed in this case.

4.  His record does not contain evidence pertaining to the misconduct that led to his discharge.  The applicant has not provided any evidence to show his service or the conditions surrounding his discharge merited an upgrade of his service characterization.  Absent such evidence, regularity must be presumed in that his misconduct rendered his service unsatisfactory, thereby not rising to the level required for a general or an honorable characterization of service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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)                                         AR20150003166



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003166



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2010 | 20100009946

    Original file (20100009946.txt) Auto-classification: Denied

    The separation authority approved the applicant's request for discharge and directed that he receive a reduction to private/pay grade E-1 with a discharge under other than honorable conditions. On 23 December 2004, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. _______ _ _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.

  • ARMY | DRB | CY2012 | AR20120001367

    Original file (AR20120001367.txt) Auto-classification: Denied

    When he returned from Iraq, his mood changed and he became a different person who made a few mistakes. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions. Yes No Counsel: None Witnesses/Observers: Spouse Exhibits Submitted: DD Form 293, dated 27 January 2011; DD Form 214 for service under current review; VA...

  • ARMY | BCMR | CY2012 | AR20120001367

    Original file (AR20120001367.txt) Auto-classification: Denied

    When he returned from Iraq, his mood changed and he became a different person who made a few mistakes. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions. Yes No Counsel: None Witnesses/Observers: Spouse Exhibits Submitted: DD Form 293, dated 27 January 2011; DD Form 214 for service under current review; VA...

  • ARMY | BCMR | CY2014 | 20140015710

    Original file (20140015710.txt) Auto-classification: Denied

    The applicant requests correction of his military records by upgrading his undesirable discharge to honorable. On 6 December 1972, the appropriate separation authority approved the applicant’s request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). The applicant contends that his military records should be corrected by upgrading his undesirable discharge to honorable because it was unjust and prevents him from receiving VA benefits.

  • ARMY | BCMR | CY2011 | 20120000585

    Original file (20120000585.txt) Auto-classification: Denied

    Following consultation with legal counsel, he requested discharge under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge. On 26 May...

  • ARMY | BCMR | CY2014 | 20140008572

    Original file (20140008572.txt) Auto-classification: Denied

    The applicant requests an upgrade of his under other than honorable conditions discharge. However, his record contains a duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows, on 2 September 1975, he was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, and he received an under other than honorable conditions discharge. His record shows he was AWOL for 93 days; therefore, his service clearly does...

  • ARMY | BCMR | CY2010 | 20100028011

    Original file (20100028011.txt) Auto-classification: Denied

    On 12 May 1976 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. On 25 May 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge. ____________X_____________ CHAIRPERSON I certify that herein is recorded the true and...

  • ARMY | BCMR | CY2012 | 20120007497

    Original file (20120007497.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to a general or honorable discharge. The applicant has tried for years to get help with upgrading his discharge.

  • ARMY | BCMR | CY2014 | 20140000630

    Original file (20140000630.txt) Auto-classification: Denied

    The applicant requests his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged on 14 September 1994, in the rank of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service - in lieu of trial by court-martial, with an...

  • ARMY | BCMR | CY2014 | 20140015146

    Original file (20140015146.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 28 April 2015 DOCKET NUMBER: AR20140015146 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. However, his record contains a DD Form 214 that shows he was discharged on 21 July 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and received an under other than honorable conditions discharge. ___________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the...