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



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ABCMR Record of Proceedings (cont)                                         AR20150003166



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