BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017943 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017943 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150017943 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 under honorable conditions (general). 2. He states he demonstrated superior soldiering skills, but he was not promoted to E-4 based on a promotion freeze. He adds he was insubordinate which caused him to be demoted in rank and sent to the retraining company at Fort Riley, KS. He later asked to be discharged for the good of the service since he was scheduled to be discharged anyway in May 1983. He states he is currently enrolled in college for substance abuse counseling and he has been clean for 12 years. He states he has disabilities in his legs and feet and is in need of support from the Department of Veterans Affairs (VA) Hospitals. Post-service he actively served in his local Veterans of Foreign Wars post for 15 years to include post leadership positions. 3. He provides his 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 19 February 1980 for 3 years. 3. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on three occasions for the following offenses: * 17 February 1982 for wrongfully using provoking words toward a private first class and willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 11 February 1982 * 17 October 1982 for being derelict in his performance of duty on or about 30 June 1982 and disobeying a lawful order from a superior NCO and commissioned officer on or about 21 September 1982 * 8 December 1982 for failing to obey a lawful order from an NCO on or about 5 December 1982 4. A copy of the applicant's charge sheet is not contained in his available file; however, on 21 December 1982, the applicant requested a delay in his court-martial proceedings. He stated he had submitted a request for discharge in lieu of a court-martial. 5. On an unknown date, he consulted with counsel and voluntarily requested discharge 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. a. In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charge against him. b. He acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits. He also acknowledged he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. He elected not to submit a statement in his behalf. 6. On 23 December 1982, the appropriate authority approved his request and directed the issuance of an under other than honorable conditions discharge. 7. On 23 December 1982, he was discharged accordingly. His DD Form 214 shows he received an under other than honorable conditions character of service. It also shows he completed 2 years, 9 months, and 15 days of net active service during this period with time lost from 12 November 1982 to 1 December 1982 (20 days). 8. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the15-year statute of limitations of that board. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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: 1. The applicant argues, in effect, that his discharge should be upgraded so he can obtain VA benefits. There are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans benefits. The evidence must show the discharge was rendered unjustly, in error, or that there were mitigating circumstances warranting the upgrade. 2. His post-service conduct is noted. Post-service conduct alone is not normally a basis for upgrading a discharge. 3. The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. The records further show he admitted he was guilty of the offense for which he was charged. He voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. The character of service he received was commensurate with the reason for his discharge. 4. Based on his record of indiscipline (20 days lost time and three NJPs) his service does not meet the standards of acceptable conduct and performance of duty for Army personnel. In accordance with Army Regulation 635-200, his service did not meet the criteria for a general or an honorable discharge //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017943 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017943 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2