IN THE CASE OF:	  

		BOARD DATE:	    13 October 2015

		DOCKET NUMBER:  AR20150003386 


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, from under other than honorable conditions to under honorable conditions (general).

2.  The applicant states he did not realize veterans had an avenue or the opportunity to request a discharge upgrade until he was encouraged to apply to the Army Board for Correction of Military Records (ABCMR) after being rejected for a Certificate of Eligibility (COE) by the Department of Veterans Affairs (VA) subsequent to applying for a VA Loan.  He has not had a criminal record since his discharge.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a letter from the VA, dated 12 February 2015.

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 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 United States Army Reserve (USAR) on 
16 December 1975 and was subsequently discharged on 18 July 1976 for enlistment the Regular Army on 19 July 1976.  He held military occupational specialty 63H (Auto Repairman) and attained the rank/grade of specialist four (SP4)/E-4.

3.  He served in Germany from 10 December 1976 to 3 December 1979.

4.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his record contains a             DA Form 268 (Report for Suspension of Favorable Action (Flag)), dated 18 May 1979, in which item 18 (Synopsis of Available Information) states: "[The applicant submitted a request for discharge for the good of the service, chapter 10, [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel] because of the following charges which have been preferred against him for violation of Article 92 [Uniform Code of Military Justice] UCMJ, for possession and sale of methamphetamine.  [His] request [for discharge under the provisions of Army Regulation 635-200, chapter 10 was] submitted on 15 August 1979."

5.  His record contains a Report of Mental Status Evaluation, dated 5 September 1979.  The examining official indicated his behavior was normal, he was fully alert and oriented, his mood was level, his thinking process clear, his thought content normal, and his memory was good.  The impression was that the applicant had no significant mental illness, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  Furthermore, he met medical retention standards.  

6.  His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 6 and 7 September 1979, respectively.  These forms show the applicant was considered medically qualified for separation under the provisions of Army Regulation 635-200, chapter 10.  

7.  He was discharged from the Army on 28 September 1979.  His record contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, and he received an under other than honorable conditions discharge.  

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


9.  He provided a letter issued by the VA, Atlanta Regional Loan Center, Decatur, GA on 12 February 2015.  This letter states, in effect, that his request for a COE was returned without action because the DD Form 214 he submitted as proof of service contained an unacceptable characterization of service.  He was informed that he must have received an under honorable conditions (general) or an honorable characterization of service to qualify for a COE.  

10.  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 upgrade to under honorable conditions (general) to make him eligible for a VA COE, because he has not been convicted of any crimes since his discharge.  

2.  The evidence of record shows he requested discharge under the provisions of Army Regulation 635-200, chapter 10, because he had been charged with possession and sale of methamphetamine.  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 28 September 1979 under the provisions of Army Regulation 635-200, chapter 10, and 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.  The possession and sale of methamphetamine is serious misconduct punishable by court-martial.  This misconduct rendered his service unsatisfactory.  

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)                                         AR20150003386



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ABCMR Record of Proceedings (cont)                                         AR20150003386



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