IN THE CASE OF: BOARD DATE: 30 October 2208 DOCKET NUMBER: AR20080014732 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, in effect, an upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect, his mother needed financial support and help raising his younger brothers and sisters and that he made a bad decision and he went home to help. He also states, at the time, he was young and did not understand that by signing a request for discharge for the good of the Service it would destroy his future. The applicant further states that his actions were wrong and he is disappointed in the decision he made at the time. He adds that he completed 18 months of his 24-month enlistment commitment and requests an upgrade of his discharge in order to be able to obtain veterans benefits. 3. The applicant provides no additional documentary evidence. 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's military service records show that he enlisted in the Regular Army and entered active duty for a period of 2 years on 26 September 1972. The applicant’s records show his date of birth is 2 September 1953 and at the time of his entry on active duty he was 19 years of age. Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 94B (Cook). 3. The applicant’s military service records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 2 March 1973. This document shows that non-judicial punishment was imposed by the company commander against the applicant in that he did, on or about 16 February 1973, at Orlando, Florida, absent himself from his place of duty, at which he was required to be, to wit: 330th Transportation Center (Movement Control), located at Fort Bragg, North Carolina, and did remain absent until on or about 25 February 1973. His punishment consisted of a forfeiture of $71.00 for 1 month and 7 days in the Correctional Control Facility (suspended for a period of 2 months). 4. The applicant’s military service records contain a DA Form 2627-1, dated 9 July 1973. This document shows that non-judicial punishment was imposed by the battalion commander against the applicant in that he did, on or about 18 June 1973, at Fort Bragg, North Carolina, without authority, absent himself from his place of duty, at which he was required to be, to wit: Headquarters Detachment, 330th Transportation Center (Movement Control), located at Fort Bragg, North Carolina, and did remain absent until on or about 7 July 1973. His punishment consisted of reduction to the grade of private (E-1), a forfeiture of $153.00 per month for 2 months, and 21 days in the Correctional Control Facility. 5. The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record). Item 44 (Time Lost Under Section 972, Title 10, United States Code, and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was absent without leave (AWOL) for 9 days from 16 February 1973 through 24 February 1973, AWOL for 19 days from 18 June 1973 through 6 July 1973, and in an AWOL status and dropped from the rolls in a deserter status for 74 days from 28 January through 11 April 1974. 6. The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 25 April 1974, that shows the major serving as Commander, U.S. Army Personnel Control Facility, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, preferred charges against the applicant for violation of Article 86, UCMJ, with the specification that, on or about 28 January 1974, without authority, he did absent himself from his organization, to wit: 330th Transportation Center, located at Fort Bragg, North Carolina, and did remain so absent until on or about 12 April 1974. 7. On 19 April 1974, the applicant requested a discharge for the good of the Service under the provisions of chapter 10 of Army Regulation 635-200. The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or an undesirable discharge, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant. 8. The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf, which would accompany his request for discharge and that he submitted a statement in his own behalf. 9. The applicant’s separation action contains a copy of the applicant's statement to the Commanding General, dated 19 April 1974. This statement shows the applicant made the statement voluntarily and indicated that he could not adjust to military life. The applicant also indicated, in his own handwriting, "I know I will get a U.D. [Undesirable Discharge] and I know that I will lose most of my benefits. I know that I have 72 hours to think about this but I want to put it in now." The statement also shows that the applicant and Captain Jefferson James D____ (who was then assigned to the Judge Advocate General Corps and serving as the applicant's legal counsel) both placed their signatures on this document. 10. On 25 April 1974, the major serving as Commander, U.S. Army Personnel Control Facility, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, recommended approval of the applicant’s request for discharge from the Army, under the provisions of chapter 10 of Army Regulation 635-200. The commander stated that a review of the applicant's military records shows he was allegedly AWOL, from on or about 28 January 1974 to on or about 12 April 1974, and he had received non-judicial punishment under the provisions of Article 15, UCMJ, on 2 occasions. The commander also recommended the applicant be issued a DD Form 258A (Undesirable Discharge Certificate). 11. On 29 April 1974, the colonel serving as Commander, Headquarters Command, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, concurred with the unit commander's recommendation and recommended approval of the applicant’s request for discharge from the Army, under the provisions of chapter 10 of Army Regulation 635-200, with an Undesirable Discharge Certificate. 12. On 1 May 1974, the major general serving as Commander, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service, with an Undesirable Discharge Certificate and Separation Program Number (SPN) "246." 13. The applicant's military service records contain his DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 11 June 1974, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, Chapter 10, paragraph 10-1, for the good of the Service, with SPN “246,” and issued a DD Form 258A (Undesirable Discharge Certificate). Item 27 (Remarks), in pertinent part, shows the applicant had 102 days lost under Title 10, United States Code, section 972, from 16 February 1973 through 24 February 1973, 18 June 1973 through 6 July 1973, and 28 January 1974 through 11 April 1974. The DD Form 214 also shows that, at the time of his discharge, the applicant had completed 1 year, 5 months, and 4 days net active service this period. 14. The applicant's military service records are absent any evidence that he submitted a request for ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons. 15. The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition. 16. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 17. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates. Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 18. Army Regulation 635-5-1 (Separation Program Numbers (SPN)) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214. It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service - in lieu of court-martial. 19. Army Regulation 635-200, 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. Whenever there is doubt, it is to be resolved in favor of the individual. 20. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 21. Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge under other than honorable conditions should be upgraded because he was young, and that he made a bad decision when he went AWOL to help his mother with his siblings and her finances. He did not understand that by signing a request for discharge for the good of the Service, his future would be destroyed and he would not be eligible to obtain veterans benefits. 2. Records show the applicant was 19 years of age when he went AWOL on 2 occasions; 20 years of age when he went AWOL and was dropped from the rolls, and was placed in a deserter status; and 20 years of age when he submitted his request for discharge for the good of the Service. However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service during this period. 3. There is no evidence that the applicant submitted a request for ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons (i.e., to provide personal/financial assistance to his mother to help in the care of his brothers and sisters). There is also no evidence of record that Army officials denied such a request. 4. The evidence of record shows that the applicant was charged with committing an offense, the punishment for which included a bad conduct or dishonorable discharge, and that the applicant voluntarily acknowledged guilt to the offense charged. The evidence of record also shows that the applicant's legal counsel advised him of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant. The evidence of record further shows that the applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. In addition, the applicant voluntarily prepared and submitted a personal statement acknowledging that he could not adjust to military life, understood he would receive an Undesirable Discharge, and that he would lose his benefits. Therefore, in view of all of the foregoing, the applicant provides insufficient evidence to support his claim that he did not understand that a discharge for the good of the Service would have an adverse impact on his eligibility for government benefits and his future. 5. The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations. In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. 6. The evidence of record shows that charges were preferred against the applicant for violation of Article 86, UCMJ (i.e., being in an AWOL status from 28 January 1974 through 12 April 1974). The evidence of record also shows the applicant had 102 days (i.e., more than 3 months) lost during the period of service under review. In addition, records show that he completed only 17 months of his 2-year enlistment. Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge. Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory. Therefore, the applicant is not entitled to a general discharge under honorable conditions. 7. As a matter of information, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for veteran’s benefits. 8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20080014732 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014732 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1