IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090017960 


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 upgrade of his undesirable discharge to a general under honorable conditions discharge.  He also requests a hearing that he can attend.

2.  The applicant states:

* he was never advised of his rights until recently by a service officer
* he asked his platoon sergeant in boot camp for a hardship discharge because his father had a heart attack and he was needed at home
* his platoon sergeant said it would take longer to get it than the time he had left in the service
* he kept asking for a hardship discharge but the lieutenant in charge did not file his request and kept on him until he went absent without leave (AWOL)
* he indicates while in boot camp it was noted he was not to do pushups, low crawls, and deep-knee bends but his platoon sergeant made him do them anyway
* he served 13 months and 1 day of a 24month enlistment
* he wants his discharge upgraded to obtain Department of Veterans Affairs (DVA) medical benefits

3.  The applicant provides no documentary evidence 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 was inducted into the Army of the United States on 4 March 1969.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76P (stock control and accountant specialist).  He was later awarded MOS 63A (mechanic maintenance apprentice).

3.  The applicant went AWOL on 15 April 1970 and returned to military control on 16 June 1971.  On 24 June 1971, charges were preferred against the applicant for the AWOL period.  Trial by general court-martial was recommended.

4.  On 24 June 1971, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, 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 might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

5.  On 2 August 1971, the applicant made a sworn statement.  He stated:

* when he came in the Army he asked about getting a hardship discharge
* he was told it would take too long and he would be out of the service before it would be approved
* he did not pursue the hardship discharge after that
* next he tried to get a medical discharge and all he got was a profile on his hand and arm
* a doctor told him he could not handle weapons and he felt if he could not handle weapons he was no good to the Army
* just about every one of his commanders told him he shouldn’t be in the Army
* they told him they were going to try to get him out of the Army but nothing ever came of it
* a reenlistment counselor told him he was not qualified to reenlist because of his test scores
* his main reason for going AWOL was to help his family
* his family was on welfare
* he turned himself in to military authorities because he was tired of running and wanted to end the situation he was in
* he should have applied for a hardship discharge despite what he was told about not having the chance to get one

6.  On 9 August 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

7.  Accordingly, the applicant was discharged with an undesirable discharge on 
16 August 1971 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 1 year, 3 months, and 
1 day of creditable active service with 432 days of time lost.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.


10.  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.

11.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  It further states that the Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was never advised of his rights until recently, evidence of record shows he consulted with counsel on 24 June 1971 prior to submitting his voluntary request for discharge.

2.  A discharge is not upgraded for the purpose of obtaining DVA or other benefits.

3.  The applicant’s voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of 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.

5.  The applicant’s record of service included 432 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 under honorable conditions discharge.

6.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.


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)                                         AR20090017960



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ABCMR Record of Proceedings (cont)                                         AR20090017960



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