IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150007578 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 under other than honorable conditions discharge to honorable and the restoration of his rank to the grade of E-3. 2. He states he feels his discharge was unjust since he was not offered any counseling and not issued a physical or a dental examination upon his discharge. He explains he served in the Army for 10 years from 1978 to 1988, four enlistments, and received three honorable discharge certificates. He continued by expounding on his medical issues and states as a veteran; he would like to have the benefits he deserves for the sake of his health issues. However, until he can have his discharge upgraded to honorable, he cannot apply for those benefits. 3. He provides a self-authored statement and a DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 6 September 1978 for 3 years and performed two reenlistments. 3. His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: a. 19 April 1988, for wrongfully using marijuana between 1 February and 1 March 1988. His punishment consisted of reduction from E-5 to E-4 and 45 days of extra duty; and b. 4 August 1988, for wrongfully possessing more than one military identification card on or about July 1988. His punishment consisted of reduction from E-4 to E-3, a forfeiture of pay per month for one month, and 14 days of restriction and extra duty. 4. On 28 April 1988, the applicant underwent a mental status evaluation. The psychiatrist determined he had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 5. On 28 April 1988, the applicant signed a Medical Examination for Separation Statement of Option stating that "I do not desire a separation medical exam." 6. On 13 July 1988, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for the commission of serious offenses. Specifically, the commander stated the basis for his action were the applicants: * Wrongful use of marijuana between 1 February and 1 March 1988 * Indebtedness of $804.18, dated 16 February 1988 * Indebtedness of $969.18, dated 23 February 1988 * Indebtedness of $1,219.18, dated 3 March 1988 * Dishonored check notification, dated 18 April 1988 * Report of Indebtedness by Joint Military Services, dated 24 June 1988 * Overdrawn account letter, dated 6 June 1988 7. The applicant consulted with military counsel. After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to appear before an administrative board and elected not to submit a statement. He acknowledged he understood he could encounter substantial prejudice in civilian life if he received a general discharge. He further acknowledged he understood if he received a character of service that was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not guarantee an upgrade of his discharge. 8. On 25 August 1988, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed the issuance of an Under Other Than Honorable Conditions Discharge. 9. On 7 October 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct, commission of a serious offense, with a characterization of service listed as under other than honorable conditions. His DD Form 214 show his rank/pay grade as private (PVT)/E-1. He completed 9 years and 7 days of creditable active service during the period covered by his DD Form 214, with lost time from 27 September to 1 October 1979. 10. On 29 March 1989, the applicant appealed to the ADRB to upgrade his discharge. On 8 December 1989, the ADRB denied the applicant’s request for a discharge upgrade. The ADRB determined that the applicant was properly and equitably discharged. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, states that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. c. 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. d. 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. The applicant contends, in effect, the Board should upgrade his discharge to make him eligible for Department of Veterans Affairs benefits. However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade. 2. He also requests the restoration of his rank to E-3. In accordance with Army Regulation 635-200, when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 3. The available evidence confirms the applicant underwent a mental status evaluation, and he was determined to have the mental capacity to understand and participate in board proceedings. He waived his rights to a separation physical. Additionally, the evidence shows he consulted with military counsel and elected not to appear before an administrative board or to submit a statement. Therefore, the applicant's claim that he was not counseled or given a physical is not supported by the available evidence. 4. The available evidence confirms that all requirements of law and regulation were met, and the applicant’s rights were fully protected throughout the separation process. The record further shows the applicant’s discharge accurately reflects his overall record of service. 5. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general or an honorable characterization of service. Likewise, based on the applicable regulatory guidance, he was properly reduced to the lowest grade. 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) AR20150007578 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007578 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1