PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 January 2001                   
	DOCKET NUMBER:   AR2000043639

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge be upgraded to honorable.

3.  The applicant states that he served four years and reenlisted before he was discharged.

4.  The applicant’s military records show that he enlisted in the Regular Army on 12 June 1978.  He was honorably discharged on 2 May 1982 for the purpose of
immediately reenlisting on 3 May 1982.

5.  On 9 September 1982, the applicant was convicted by a special court-martial of unlawful possession of a switchblade knife; four specifications of wrongful possession of marijuana, and two specifications of wrongful sale of marijuana.  His approved sentence was to be discharged with a bad conduct discharge, to be confined at hard labor for 3 months, to forfeit $367.00 pay for 3 months, and to be reduced to pay grade E-1.

6.  On 30 March 1983, the U. S. Army Court of Military Review reviewed the applicant’s case.  Three contentions of assignment of error were considered and found without merit.  The findings of guilty and the sentence were affirmed.

7.  On 9 November 1983, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.  He had completed a total of 5 years, 2 months and 28 days of creditable active service and had 60 days of lost time.

8.  The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS:  

1.  The applicant’s bad conduct discharge pursuant to his sentence by court-martial was accomplished in accordance with applicable laws and regulations.  

2.  Considering the offenses of which the applicant was convicted, the type of discharge given was appropriate and it would not be appropriate to change the records to show that he was discharged honorably from the reenlistment commencing on 3 May 1982.  However, it appears that his honorable discharge of 2 May 1982 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 2 May 1982 may work an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 2 May 1982.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__mdm___  __clg___  __ena___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043639	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.