BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090007311 


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 that his undesirable discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states he was told his discharge would be upgraded in 
6 months automatically but it never was.  He states he needs an upgrade to his discharge so he can get into the Department of Veterans Affairs (VA) hospital to receive medical care.  He states he has medical issues but cannot afford health care.

3.  The applicant provides no additional evidence or official documentation 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 records show he enlisted in the Regular Army on 22 June 1972 for a period of 3 years.  

3.  On 18 July 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.

4.  On 10 November 1972, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from on or about 17 October 1972 to on or about 7 November 1972.

5.  On 11 November 1972, the applicant completed his advanced individual training and was awarded the military occupational specialty of 63B (Wheel Vehicle Repairman).  On 15 January 1973, he was assigned to Battery A, 
1st Battalion, 68th Air Defense Artillery at Fort Hood, TX.

6.  On 17 April 1973, the applicant departed AWOL and was dropped from the rolls on 16 May 1973.  He returned to military control on 30 May 1973.

7.  On 26 June 1973,  the applicant pled not guilty but was found guilty by a special court-martial of being AWOL from on or about 17 April 1973 to on or about 30 May 1973.

8.  On 29 June 1973, the applicant was assigned to A Company, Headquarters Command at Fort Leonard Wood, MO.

9.  On 2 July 1973, the applicant departed AWOL and was dropped from the rolls on 2 August 1973.  On 2 August 1973, he was apprehended by civilian authorities and confined in Marion County Jail, Indianapolis, IN, for a civil charge of glue sniffing.  His trial date was set for 23 October 1973.

10.  On 29 October 1973, the applicant was returned to military authorities and on 13 November 1973 court-martial charges were preferred against him for being AWOL from on or about 2 July 1973 to on or about 29 October 1973.

11.  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. 
The applicant submitted a statement in his own behalf in which he stated he joined the Army because he did not get along with his father.  He hated the Army when he came in and he hated it now.  He would never get used to taking orders.

12.  On 19 November 1973, the applicant's commander recommended approval of the applicant's request for discharge and that he be furnished an Undesirable Discharge Certificate.

13.  On 27 November 1973, 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

14.  On 4 December 1973, 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 10 months and 15 days of active service that was characterized as under conditions other than honorable.  He had 211 days of time lost.

15.  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.

16.  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 certificate.

17.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  



18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

2.  The applicant voluntarily requested discharge and acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

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 records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  The applicant's expressed need to obtain health care from the VA is noted.  However, the ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for benefits.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

6.  The applicant’s record of service included one special court-martial conviction and he accepted NJP on two occasions.  He had 211 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant’s record of service is insufficiently meritorious to warrant a general discharge or honorable discharge.
7.  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.

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)                                         AR20090007311





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ABCMR Record of Proceedings (cont)                                         AR20090007311



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