IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019314 


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 an upgrade of his undesirable discharge (UD) to an honorable discharge.

2.  The applicant states, in effect, in 1975 at the time of discharge he was told his UD would be upgraded to an honorable discharge after 10 years due to his bipolar disorder.  He states he voluntarily enlisted in 1974 and he was unable to complete his 2 years of service due to mental illness.  He only receives a Supplemental Security Income of $606.36 monthly.  He applied for additional benefits from the Department of Veterans Affairs (VA) and received his DD Form 214 (Report of Separation from Active Duty) that shows his service is undesirable.  He served his country to the best of his ability and he deserves an honorable discharge so that he may qualify for veteran's benefits. 

3.  In support of his application, the applicant provides a copy of his DD Form 214.

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.  His military records show he enlisted in the Regular Army in pay grade E-1 on 29 July 1974, for 2 years.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).  

3.  On 16 September 1974, the applicant accepted punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully stealing the property of another individual on 12 September 1974.  His punishment included a forfeiture of $76.00 pay for 1 month and 14 days of restriction and extra duty.

4.  He was advanced to pay grade E-2 on 29 November 1974, which was the highest grade he held during his period of service.

5.  On 25 February 1975, he was convicted by a summary court-martial of assault and communicating a threat on 28 December 1974.  His punishment included a reduction to pay grade E-1 and confinement at hard labor for 30 days. His sentence was approved on 25 February 1975.  

6.  He was reported absent without leave (AWOL) on 26 April 1975 and dropped from the rolls of his organization on 24 May 1975.  He was returned to military control on 28 May 1975.  He was again reported AWOL on 9 June 1975 and dropped from the rolls.  He surrendered to military authorities and he was returned to military control on 6 October 1975.

7.  On 7 October 1975, a DD Form 458 (Charge Sheet) was prepared by the Commander, US Army Personnel Control Facility, Fort Dix, New Jersey.  He was charged with two specifications of being AWOL from 26 April to 28 May 1975 and from 9 June to 6 October 1975.

8.  On 8 October 1975, his company commander recommended he be discharged from the United States Army.  The company commander stated the applicant had been medically examined and was found qualified for separation and there did not appear to be any reasonable grounds to believe he was mentally defective, deranged, or abnormal.  The company commander also stated it was his opinion the applicant had no motivation for continued service and he would not respond to either counseling or rehabilitation.  The applicant was also pending a trial for an offense punishable by a bad conduct or dishonorable discharge.  

9.  On 8 October 1975, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he understood he could be issued a UD, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 20 October 1975, his battalion commander recommended approval of his request for discharge with the issuance of a UD Certificate.  

11.  On 23 October 1975, the appropriate authority approved his request for discharge for the good of the service and directed that a UD Certificate be issued and that he be reduced to pay grade E-1.

12.  He was discharged in pay grade E-1, on 12 November 1975, for the good of the service in lieu of trial by court-martial with a UD.  He was credited with 10 months and 13 days of net active service and 150 days of lost time due to being AWOL.

13.  There is no evidence the applicant requested assistance through his chain of command for any mental condition which prevented him from completing his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

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

15.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges had been preferred, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, a UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.



16.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions were considered; however, they are not supported by the evidence and do not support an upgrade of his UD.  There is no evidence he had a mental condition which prevented him from satisfactorily serving his term of enlistment.  

3.  The evidence shows he was punished under Article 15 of the UCMJ for theft, convicted by a summary court-martial of assault and communicating a threat, and charged with two specifications of being AWOL.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly based on the charges.  He also acknowledged that he understood he could be issued a UD.  There is no evidence he was advised of an automatic upgrade of his discharge.

4.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an upgrade of his discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations.
6.  Additionally, he is advised that the Army does not have, nor has it ever had a policy to automatically upgrade a discharge for the purpose of qualifying an individual for benefits administered by another agency.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090019314



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ABCMR Record of Proceedings (cont)                                         AR20090019314



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