IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090011338 


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 be upgraded to an honorable discharge or a general discharge.

2.  The applicant states, in effect, that he is requesting an upgrade to gain eligibility for Department of Veterans Affairs (VA) medical benefits.  He also states that he returned to the United States on leave to attend to some personal family matters.  While on leave he requested stateside duty which was denied.  He did not return to Germany and he was picked up by the military police.  He again applied for stateside duty and was told he would have to return to Germany or sign a Chapter 10 to be discharged from active duty.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of this 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 records show he enlisted in the Regular Army on 15 September 1970.  He was awarded the military occupational specialty of light vehicle driver, and was promoted to pay grade E-3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for failing to be at his place of duty on 29 November 1970 and 21 April 1971.

4.  The applicant requested separation due to hardship or dependency on 22 July 1971.  His request was based on his mother and father's poor health and his wife's pregnancy.  However, the evidence that he submitted failed to support that his parents existing health conditions constituted undue and genuine hardship, nor was the pregnancy of his wife a disability for which separation could be authorized as prescribed in Army Regulation 635-200 (Personnel Separations).  His request was disapproved on 27 July 1971.

5.  The applicant's records show he was charged with being absent without leave (AWOL) during the period 13 August to 23 September 1971.

6.  On 2 October 1971, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service.

7.  The applicant consulted with counsel, and he was advised of his rights.  He also acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He chose not to submit a statement in his own behalf.



8.  On 27 October 1971, the applicant's unit commander recommended approval of his request for discharge and recommended that he be issued an Undesirable Discharge Certificate.

9.  On 8 November 1971, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed an Undesirable Discharge Certificate (DD Form 258A) be issued to him.  On 18 November 1971, the applicant was discharged accordingly.  His DD Form 214 shows he had completed a total of 10 months and 27 days of active military service with 100 days of lost time under Title 10 USC 972.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service.  At the time of the applicant's separation, an undesirable discharge was appropriate.

11.  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.

12.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he accepted NJP on two occasions for failing to be at his place of duty and is DD Form 214 shows he had 100 days of lost time.  This serious misconduct warranted an undesirable discharge.


2.  The applicant was voluntarily discharged under the provisions of chapter 10, Army Regulation 635-200.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  Properly issued discharges are not upgraded for the sole purpose of establishing eligibility for other programs or benefits.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090011338



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ABCMR Record of Proceedings (cont)                                         AR20090011338



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