IN THE CASE OF:	  

	BOARD DATE:	  12 JUNE 2008

	DOCKET NUMBER:  AR20080007572 


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 a discharge under honorable conditions.  

2.  The applicant states, in effect, the local Department of Veterans Affairs (VA) office told him if his discharge was upgraded he may be entitled to some veterans benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a letter from Wiregrass Hospice, Jasper, Alabama allowing Louise F. to act on his behalf in support of his application.

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 personnel record shows he enlisted in the Regular Army on 11 June 1969 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 76X (subsistence supply specialist).

3.  The applicant was assigned to Headquarters and Headquarters Company, 3rd Ordinance Battalion (Ammo) in the Republic of Vietnam during the period from 4 November 1969 to 21 October 1970.

4.  On 12 July 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for sleeping at his post in an area designated as authorizing entitlement to special pay for duty subject to hostile fire.

5.  On 26 May 1971, the applicant pled guilty and was found guilty to being absent without leave (AWOL) during the period from 12 December 1970 to 
12 May 1971.

6.  The applicant accepted NJP under Article 15, UCMJ, on 9 and 23 August 1971.  His offenses included failure to go at the time prescribed to his appointed place of duty and AWOL during the periods from 3-5 August 1971 and from 
23-24 August 1971.

7.  On 4 October 1971, the applicant departed AWOL and he was dropped from the rolls on 3 November 1971.  On 8 August 1972, he returned to military control.

8.  On 24 August 1972, court-martial charges were preferred by Headquarters Command, Fort Campbell, Kentucky, against the applicant for being AWOL during the period from 4 October 1971 to 8 August 1972.

9.  On 25 August 1972, the applicant signed his request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.


10.  The applicant submitted a statement, dated 14 August 1972, with his request for discharge.  The applicant stated he was having personal and financial problems at home and if he was sent back to duty he would not return but go AWOL instead.  He further stated that he understood he would receive an undesirable discharge and that he would be deprived of all of the benefits through the VA.

11.  The applicant's commander and intermediate commander recommended approval of the applicant's request for discharge and that he be furnished an Undesirable Discharge Certificate.

12.  On 15 September 1972, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that the applicant be reduced to private/pay grade E-1, and that he be furnished an Undesirable Discharge Certificate.

13.  On 15 September 1972, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service.  He had completed 2 years and 3 days of active service that was characterized as under conditions other than honorable.  He had 460 days of time lost.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive an upgrade to his discharge so he can qualify for benefits from the VA.



2.  The applicant voluntarily requested discharge, acknowledged that he may be discharged under other than honorable conditions, and that he would be furnished an Undesirable Discharge Certificate.  He also acknowledged that he may be ineligible for many or all veterans benefits from the VA.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the DVA.

6.  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 that requirement.

7.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20080007572



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ABCMR Record of Proceedings (cont)                                         AR20080007572



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