IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080009155
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 (UD), characterized as under other than honorable conditions (UOTHC), be upgraded.
2. The applicant states, in effect, he needs help to obtain Veterans Affairs (VA) benefits.
3. 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 applicants 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 applicants 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 record shows he enlisted in the Regular Army on 28 January 1972. He was trained as an Infantry Direct Fire Crewman, in military occupational specialty (MOS), 11H. He was promoted to PFC/E-3 effective 2 June 1972.
3. Item 44 (Time Lost ), of the applicant's DA Form 20 (Enlisted Qualification Record), shows that he was absent without leave (AWOL) from 21 June 1972 to 11 September 1972 (83 days) and from 5 October 1972 to 11 October 1972 (7 days).
4. All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records. However, the applicant's records contain a copy of his DD Form 214 which shows that on 11 October 1972, he was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.
He was furnished an undesirable discharge, with his service characterized as UOTHC. He had a total of 5 months and 14 days of total active service and 90 days of time lost.
5. There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
6. Army Regulation 635-200 set forth the basic authority for 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, at any time, after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate.
7. 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.
8. 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicants administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.
2. All the facts and circumstances pertaining to his discharge are unavailable for review.
3. The available evidence shows that the applicant's discharge was based on his misconduct, for AWOL.
4. The applicant claims, in effect, that he needs assistance obtaining VA benefits. Eligibility for veteran's benefits (to include VA medical benefits) does not fall within the purview of this Board and the characterization of an individuals service is not changed for the purpose of obtaining VA benefits.
5. In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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.
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