IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080004960 


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, that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he would like to have his undesirable discharge changed to honorable so that he can receive benefits that he believes he is entitled to after having served his full 2 years.

3.  The applicant continues that the Army did not take him at first due to a rupture.  As time went by, he got an operation and when he healed, he got drafted.  He states that he keeled over due to severe pain while marching with a full back pack.  This happened during basic training; then, it happened again in AIT (advanced individual training).  He adds that he made corporal in AIT then again just before he got out, but they took it away from him.

4.  The applicant provides a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, in support of his request.

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 records show he was inducted into the Army of the United States on 21 April 1971.  He successfully completed basic combat training at Fort Knox, Kentucky, and his advanced individual training at Redstone Arsenal, Alabama.  On completion of his advanced training, he was awarded the military occupational specialty 55B, Ammunition Storage Specialist.

3.  On 29 October 1971 the applicant was assigned to the 8th Ordnance Company, Fort Bragg, North Carolina.

4.  Item 33 (Appointments and Reductions), of the applicant’s DD Form 214, shows he was advanced to the rank and pay grade of Private, E-2, on 21 August 1971.  This would be the highest rank and pay grade he would serve in while on active duty.

5.  On 9 December 1971, the applicant departed absent without leave from his unit and was dropped from the rolls of his unit on 8 January 1972.

6.  On 7 April 1972, the applicant returned to military control at Selfridge Air Force Base, Michigan.  He was accessed back into the strength of the Army at the Army Personnel Control Facility, Fort Riley, Kansas, on 21 April 1972.

7.  On 3 May 1972, charges were preferred against the applicant for going absent without leave from his unit on 9 December 1971 and remaining so absent until 7 April 1972.

8.  On 4 May 1972, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the Uniform Code of Military Justice (UCMJ), which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request.

9.  The applicant stated he understood that if his request were accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood that as a result of issuance of such a discharge, he could be deprive of all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

10.  The applicant stated, that prior to completing his request for discharge for the good of the service, he had been afforded the opportunity to appointed counsel or counsel of his own choice.  On 4 May 1972, the applicant received counsel and acknowledged that the decision to submit a request for discharge for the good of the service was his own.

11.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant submitted a statement in his own behalf which is essentially an FR Form 1071L (Statement of AWOL [Absent Without Leave]), which called for responses to a variety of questions related to his absence without leave.

12.  On 4 May 1972, the applicant applied for and was given authority for excess leave pending approval of his request for discharge for the good of the service.

13.  The transmittal of the applicant’s request for discharge shows he was given a separation physical examination; however, the results of this examination are not available for the Board’s review.  In the absence of the normally completed Standard Form 88 (Report of Medical Examination) and Standard Form 93 (Report of Medical History), and the fact that the applicant was discharged, based upon his request, it must be presumed he was found qualified for discharge after being physically examined, in accordance with Chapter 3, Army Regulation 635-40, by medical authority.

14.  On 12 May 1972, Special Orders Number 133, were published by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, reducing the applicant from his rank and pay grade of Private, E-2 to Private E-1, with an effective date and date of rank of 10 May 1972.

15.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service, and on 10 May 1972, the approval authority, a brigadier general, approved the applicant’s request for discharge and directed he be issued an Undesirable Discharge Certificate.

16.  The applicant was discharged in absentia, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in the rank and pay grade of Private, E-1, on 1 June 1972.  The applicant’s service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.

17.  On the date of his discharge, the applicant had completed 8 months and 27 day of creditable active military service, with 134 days time lost due to his absence without leave.

18.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

19.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

20.  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.

21.  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 separation specifically allows such characterization.

22.  In his application, the applicant stated that he had been promoted to Corporal; however, a thorough review of the applicant’s service personnel records show that the highest rank and pay grade he ever held while he served on active duty was Private, E-2.  He was advanced to this rank and pay grade on 21 August 1971 while he was a student at Redstone Arsenal undergoing his AIT.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, 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.

2.  The evidence of record shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service, at his request.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily and in writing, request separation from the Army in lieu of trial by court-martial.

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  The applicant’s entire record of service for the period under review was fully considered.  As a result, the reason for discharge and the characterization of service were both proper and equitable.

4.  Contrary to the applicant’s assertions that he completed a full two years of Army service, the evidence shows he completed only 8 months and 27 days of creditable active military service and had 134 days of time lost due to his periods of absence without leave.

5.  The applicant also asserts that he was promoted to the rank and pay grade, Corporal, E-4; however, the applicant’s service personnel records shows that the highest rank and pay grade he was advanced to was Private, E-2.

6.  The applicant now wants an upgrade of his discharge so that he can receive benefits that are normally extended to former service members who were honorably discharged; however, the application he submitted very clearly states he understood that as a result of issuance of an undesirable discharge, he could 

be deprived of all benefits administered by the Department of Veterans Affairs and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant is advised that the Board does not upgrade discharges to allow individuals who were discharged with an under other than honorable conditions discharge to access benefits that are intended for honorably discharged veterans.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his Undesirable Discharge to a fully Honorable 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)                                         AR20080004960



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ABCMR Record of Proceedings (cont)                                         AR20080004960



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